OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 7 September 2017 ( 1 )

Joined Cases C‑66/16 P to C‑69/16 P and Cases C‑70/16 P and C‑81/16 P

Comunidad Autónoma del País Vasco,

Itelazpi SA (C‑66/16 P),

Comunidad Autónoma de Cataluña,

Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (CTTI) (C‑67/16 P),

Navarra de Servicios y Tecnologías SA (C‑68/16 P),

Cellnex Telecom SA, formerly Abertis Telecom SA,

Retevisión I SA (C‑69/16 P)

v

European Commission

and

Comunidad Autónoma de Galicia,

Redes de Telecomunicación Galegas Retegal SA (C‑70/16 P)

v

European Commission

and

Kingdom of Spain (C‑81/16 P)

v

European Commission

(Appeal — State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less urbanised areas — Subsidy in favour of digital terrestrial television platform operators — Decision declaring the aid measures incompatible in part with the internal market — Concept of State aid — Advantage — Service of general economic interest — Definition — Discretion of the Member States)

Introduction

1. By their appeals, the Comunidad Autónoma del País Vasco (the Autonomous Community of the Basque Country, Spain) and Itelazpi SA (C‑66/16 P), the Comunidad Autónoma de Cataluña (the Autonomous Community of Catalonia, Spain) and the Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (CTTI) (C‑67/16 P), Navarra de Servicios y Tecnologías, SA (C‑68/16 P), Cellnex Telecom SA and Retevisión I SA (C‑69/16 P), the Comunidad Autónoma de Galicia (the Autonomous Community of Galicia, Spain) and Redes de Telecomunicación Galegas Retegal, SA (Retegal) (C‑70/16 P) and the Kingdom of Spain (C‑81/16 P) seek to have set aside the judgments of the General Court of the European Union of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), of 26 November 2015,Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900), of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899), of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901) and of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891) (together ‘the judgments under appeal’), whereby the General Court dismissed their actions for annulment of Commission Decision 2014/489/EU of 19 June 2013 relating to State aid SA.28599 ((C 23/2010) (ex NN 36/2010, ex CP 163/2009)) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha) (OJ 2014 L 217, p. 52, ‘the decision at issue’).

2. In accordance with the Court’s request, this Opinion will focus on a common plea in law which is central to the six appeals and requires an interpretation of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the judgment in Altmark’), and of Article 106(2) TFEU.

3. In recitals 119 to 126 and 172 ( 2 ) of the decision at issue, the European Commission considered that although the national or regional authorities were to provide a precise definition of a public service or a service of general economic interest (‘SGEI’) and to entrust it to a given undertaking, in accordance with both the judgment in Altmark and Article 106(2) TFEU, the Spanish authorities in question had not precisely defined the operation of a terrestrial broadcasting platform as a public service or an SGEI.

4. The appellants, in the judgments under appeal, brought actions before the General Court between 30 August 2013 and 9 October 2013 for annulment of the decision at issue. Among the pleas raised in support of their respective actions, the appellants disputed the Commission’s analysis in recitals 119 to 126 and 172 ( 3 ) of its decision. The General Court dismissed those actions.

5. The plea common to the six appeals seeks clarification of the scope of the first condition in the judgment in Altmark ( 4 ) and of one of the conditions laid down in Article 106(2) TFEU, namely the scope of the requirement of a ‘clear’ definition of the public service or SGEI obligations and, moreover, the question of the extent of the judicial review to be carried out in that respect.

Legal context

6. Article 14 TFEU provides: ‘Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. …’

7. Article 106(2) TFEU provides as follows: ‘Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in the Treaties, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.’

8. Protocol No 26 on services of general interest, annexed to the EU Treaty, in the version resulting from the Treaty of Lisbon, and to the FEU Treaty (‘Protocol No 26’) provides as follows: ‘… Article 1 The shared values of the Union in respect of services of general economic interest within the meaning of Article 14 of the Treaty on the Functioning of the European Union include in particular: – the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users; … Article 2 The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.’

9. Protocol No 29 on the system of public broadcasting in the Member States, annexed to the EU Treaty, in the version resulting from the Treaty of Lisbon, and to the FEU Treaty (‘Protocol No 29’) provides as follows: ‘… The provisions of the Treaties shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting and insofar 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 insofar as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account.’

The decision at issue

10. The present appeals concern certain measures implemented by the Spanish authorities in relation to the switch-over from analogue broadcasting to digital broadcasting throughout Spain, apart from the Comunidad Autónoma de Castilla-La-Mancha (the Autonomous Community of Castilla-La Mancha, Spain). That digitisation, which may technically be implemented by means of terrestrial, satellite and cable platforms or through high-speed Internet access, allows more effective use of the radio frequency spectrum.

11. The Kingdom of Spain established a regulatory framework in order to promote the transition from analogue to digital broadcasting, by promulgating, in particular, Ley 10/2005 de Medidas Urgentes para el Impulso de la Televisión Digital Terrestre, de Liberalización de la Televisión por Cable y de Fomento del Pluralismo (Law No 10/2005 on urgent measures for the promotion of digital terrestrial television, liberalisation of Cable TV and support of pluralism), of 14 June 2005 (BOE No 142 of 15 June 2005, p. 20562, ‘Law 10/2005’), and Real Decreto 944/2005 por el que se aprueba el Plan técnico nacional de la televisión digital terrestre (Royal Decree 944/2005 approving the National Technical Plan for digital terrestrial television), of 29 July 2005 (BOE No 181 of 30 July 2005, p. 27006, ‘Royal Decree 944/2005’). Under that Royal Decree, private and public national broadcasters were required to ensure that 96% and 98% of the population, respectively, would receive digital terrestrial television (DTT).

12. In order to allow the switch from analogue television to digital television, the Spanish authorities divided the Spanish territory into three separate areas: – Area I, which includes 96% of the Spanish population and where, as that area was considered to be commercially profitable, the cost of switching to digital was to be borne by the public and private broadcasters; – Area II, which includes remote and less urbanised regions representing 2.5% of the Spanish population, where broadcasters, in the absence of commercial interest, had not invested in digitisation, which led the Spanish authorities to put public funding in place; – Area III, encompassing 1.5% of the Spanish population, where DTT broadcasting was ruled out by the topography, the Spanish authorities’ choice was the satellite platform.

13. In September 2007, the Consejo de Ministros (Council of Ministers, Spain) adopted the National Plan for the Transition to DTT implementing the national technical plan provided for in Royal Decree 944/2005. That plan divided the Spanish territory into 90 technical transition projects and established a deadline for the switch-off of analogue broadcasting for each of those projects. The objective set out in that plan was to achieve coverage of the Spanish population by DTT comparable with the coverage of that population by analogue television in 2007, that is to say, more than 98% of that population and all or virtually all of the population in the Autonomous Communities of the Basque Country, Catalonia and Navarra.

14. In order to achieve the coverage objectives fixed for DTT, the Spanish authorities made provision for the grant of public funding, in particular in order to maintain the terrestrial digitisation process in Area II and more particularly within the Autonomous Communities in that area. ( 5 )

15. On 18 May 2009, the Commission received a complaint from SES Astra SA, intervener at first instance, concerning an alleged State aid scheme which the Spanish authorities had implemented in favour of the switch-over from analogue television to digital television in Area II. According to that party, that measure constituted non-notified aid that resulted in the distortion of competition between the terrestrial and satellite broadcasting platforms.

16. By letter of 29 September 2010, the Commission informed the Kingdom of Spain that it had decided to initiate the procedure laid down in Article 108(2) TFEU in respect of the aid scheme in question for the whole territory of Spain, with the exception of the Autonomous Community of Castilla-La Mancha, for which a separate procedure was opened (‘the decision to initiate the procedure’). By the publication of the decision to initiate the procedure, on 14 December 2010, in the Official Journal of the European Union (OJ 2010 C 337, p. 17), the Commission invited interested parties to submit their observations.

17. After receiving observations from the Spanish Authorities and other interested parties, the Commission adopted the decision at issue, the operative part of which provides as follows: ‘Article 1 The state aid granted to the operators of the terrestrial television platform for the deployment, maintenance and operation of the digital terrestrial television network in Area II unlawfully put into effect by [the Kingdom of] Spain in breach of Article 108(3) TFEU is incompatible with the internal market, except for the aid which was granted in compliance with the criterion of technological neutrality. Article 2 Individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it was granted, it met the conditions laid down in a regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 [of 7 May 1998 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid that was applicable at the time the aid was granted, OJ 1998 L 142, p. 1]. Article 3 [The Kingdom of] Spain shall recover the incompatible aid granted under the scheme referred to in Article 1 from the Digital Terrestrial Television operators, whether they received the aid directly or indirectly. … Article 4 The recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective. … Article 5 This Decision is addressed to the Kingdom of Spain.’

18. In setting out the reasons for the decision at issue, ( 6 ) the Commission considered that the measure at issue should be considered to be State aid within the meaning of Article 107(1) TFEU. ( 7 ) It considered that the DTT platform operators were direct beneficiaries of the aid, ( 8 ) while the network operators who had participated in the tenders for extension of DTT coverage were indirect beneficiaries of the aid. ( 9 ) The Commission considered, in particular, that the advantage of the measure for the latter operators was selective, since such a measure benefited only the broadcasting sector and, in that sector, the measure applied only to undertakings active in the terrestrial platform market. ( 10 )

19. According to the decision at issue, the Spanish authorities put forward, as their best and only example, the case of the Autonomous Community of the Basque Country, where digitisation was implemented by the public undertaking Itelazpi, in order to support their claim that there was no State aid, in accordance with the criteria laid down by the Court in the judgment in Altmark ( 11 ). The Commission considered, however, that the first condition laid down in that judgment, that the recipient undertaking must have a public service mandate and that the related obligations must be clearly defined, was not satisfied. ( 12 ) It also considered that the exception in Article 106(2) TFEU could not be invoked. ( 13 )

20. In that regard, recitals 119 to 126 of the decision at issue, entitled ‘First Altmark condition: Clear definition and assignment of public service obligations’, provide as follows: ‘(119) Spanish law does not declare the operation of a terrestrial network to be a public service. The 1998 [Ley General de Telecomunicaciones (General Law on telecommunications)] ( 14 ) states that telecommunications services, including operation of networks supporting radio and television, are services of general economic interest but they do not have the status of public services, which are reserved only for a limited number of telecommunications services. ( 15 ) The [General] Law on Telecommunications currently in force ( 16 ) maintains the same qualification. The transmission services for the broadcasting of television, i.e. transport of signals through the telecommunications networks, are considered to be telecommunication services and as such are services of general interest but not public service. ( 17 ) (120) In any event, the provisions of the … Telecommunications Law are technology neutral. Article 1 of the Law defines telecommunications as exploitation of networks and the provision of services of electronic communications and associated facilities. Telecommunications is the transmission of signals through any telecom network, and not through the terrestrial network in particular. ( 18 ) Moreover, Article 3 of the Law specifies as one of its objectives to encourage, to the extent possible, technological neutrality in regulation. (121) Although the law in force and applicable at the time of transfer of funds to Itelazpi defined public broadcasting as a public service, according to the Commission it is not possible to extend this definition to the operation of a particular supporting platform. Moreover, where several transmission platforms exist, one particular platform cannot be considered to be “essential” for the transmission of broadcasting signals. It would therefore have constituted a manifest error, if Spanish legislation had declared the use of a particular platform for the transmission of broadcasting signals to be a public service. (122) It is concluded that under Spanish law the operation of terrestrial networks does not have the status of a public service. (123) The Basque authorities argue that the assignment of the provision of this service of general economic interest to Itelazpi is explicitly contained in the Conventions concluded between the Basque Government, [Euskadiko Udalen Elkartea, Asociación de Municipios Vascos, EUDEL (Association of Basque Town Councils, EUDEL] and the three Basque Regional Councils. (124) In the Conventions the Basque administration recognises that values such as universal access to information and plurality of information require the universalisation of free-to-air television and undertakes to safeguard these values by extending the coverage of the state multiplexes. ( 19 ) However, no provision of the Conventions actually suggests that the operation of terrestrial network is considered to be a public service. Therefore, the Commission is of the view that the wording of the Conventions is not sufficient to clearly set out the scope of the mission of the public service, and it cannot be argued on that basis that transmission via the terrestrial network is a public service. (125) As a result, it has not been established that the first Altmark condition has been satisfied. (126) The criteria laid down in the Altmark judgement are cumulative, i.e. they all have to be fulfilled in order for the measure not to be considered State aid. In the absence of satisfaction of the first criterion, the financing granted to Itelazpi by the Basque Country authorities does not therefore qualify as compensation for the provision of a service of general economic interest.’

21. Recital 172 of the decision at issue, entitled ‘Article 106(2) TFEU’, provides as follows: ‘The Article 106(2) exception that can apply to State compensation for the costs of providing a public service cannot be invoked [either] in this case in general, [or] in the case of the Basque Country in particular. The Commission considers that the national (or regional) authorities have to define the SGEI clearly and entrust it to a particular undertaking. As assessed in [recitals] 119 to 122, it is considered that the Spanish and Basque authorities did not clearly define the operation of a terrestrial platform as a public service.’

The judgments under appeal

22. In the cases that gave rise to the judgments of the General Court of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900) and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), the applicants put forward a plea alleging infringement of Article 107(1) TFEU, in that the Commission had erred in finding the existence of State aid.

23. That plea was rejected by the General Court as unfounded.

24. The General Court, in particular, rejected the applicants’ argument that the measure at issue could not be characterised as State aid within the meaning of Article 107(1) TFEU, as no economic advantage had been conferred on the recipients, since the conditions laid down in the judgment in Altmark were satisfied.

25. In the case that gave rise to the judgment of the General Court of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899), the applicant put forward a plea alleging, in the alternative, infringement of Article 106(2) TFEU and of Protocol No 29.

26. That plea was rejected by the General Court as unfounded.

27. In those four cases, the Court held, in particular, that the Commission had not erred in considering that, in the absence of a clear and precise definition of the service in question as a public service, the first criterion in the judgment in Altmark was not satisfied. ( 20 )

28. In addition, in the case that gave rise to the judgment of the General Court of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), the General Court rejected a plea raised in the alternative and alleging infringement of Article 106(2) TFEU. The General Court held, in particular, that the applicants had failed to show that the Commission had been wrong to consider that, in the absence of a clear definition of the service consisting in operating a terrestrial network as a public service, the first condition in the judgment in Altmark was not satisfied. ( 21 )

29. Last, in the case that gave rise to the judgment of the General Court of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), the General Court rejected a plea alleging infringement of Article 107(1) TFEU. By that plea, the Kingdom of Spain had claimed, in particular, that the measure at issue constituted an SGEI and that the first condition laid down in the judgment in Altmark was satisfied. In paragraph 75 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), the General Court held that the Commission had not erred in considering that, in the absence of a clear definition of the service consisting in the operation of a terrestrial network as a public service, the first criterion in the judgment in Altmark was not satisfied.

Procedure before the Court

30. By decision of the Court of 28 March 2017, the Cases Comunidad Autónoma del País Vasco and Itelazpi v Commission (C‑66/16 P), Comunidad Autónoma de Cataluña and CTTI v Commission (C‑67/16 P), Navarra de Servicios y Tecnologías v Commission (C‑68/16 P) and Cellnex Telecom and Retevisión I v Commission (C‑69/16 P) were joined for the purposes of the oral procedure and the judgment.

31. In those cases, the Autonomous Community of the Basque Country and Itelazpi, the Autonomous Community of Catalonia and CTTI, Navarra de Servicios y Tecnologías, Cellnex Telecom and Retevisión I, SES Astra and the Commission lodged written observations.

32. In addition, in Case C‑70/16 P, the Autonomous Community of Galicia and Retegal, SES Astra and the Commission lodged written observations. Last, in Case C‑81/16 P, the Kingdom of Spain and the Commission lodged written observations.

33. At the close of that written procedure, the Court, in accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, considered that it had sufficient information in the six appeals to give a ruling without a hearing.

Arguments of the parties

In Joined Cases C‑66/16 P to C‑69/16 P ( 22 )

34. The present appeals are based on a single plea in law, divided into six parts. As stated in point 2 of this Opinion, I shall focus my conclusions on the first and second parts of the single plea.

35. By the first part of their single plea, the appellants take issue with the General Court for having misapplied the case-law of the Court of Justice and the General Court, according to which the definition of SGEIs by a Member State can be questioned by the Commission only in the event of manifest error. ( 23 )

36. The appellants claim that, in order to endorse the Commission’s assessment, the General Court relied on the single ground that the Spanish authorities’ definition of the SGEI in question was not sufficiently ‘clear and precise’, without also finding that such a definition did not constitute a ‘manifest error’. On the contrary, the General Court does not dispute that there was a market failure or that the service in question was an activity that might be characterised as an SGEI.

37. The General Court thus manifestly exceeded the limit of the review of a manifest error laid down in Article 14 TFEU, Article 106(2) TFEU, Article 107(1) TFEU and Protocol No 26.

38. The Commission contends that the first part of the single plea is ineffective or, in any event, unfounded.

39. It observes that the judgment in Altmark requires that the public authorities entrust the operator concerned with an SGEI by an act of a public authority that clearly defines the obligations in question. ( 24 ) In this instance, the General Court, on the basis of the acts submitted to it, concluded that none of them defined the operation of a DTT network in Area II as an SGEI, whether at national or at regional level.

40. Thus, the Commission contends that, before addressing the question of the existence, or the absence, of a manifest error in the definition and the grant of an SGEI, the General Court had to determine whether there was one (or more) acts of a public authority whereby the operator was entrusted with an SGEI, which was not the case here. The General Court cannot therefore be criticised for having misapplied the ‘manifest error’ criterion, since it merely ascertained whether the minimum conditions established for that purpose in the case-law were satisfied.

41. SES Astra is of the view that the first part of the plea is inadmissible and in any event unfounded.

42. It maintains that, by this first part of the plea, the appellants are in reality disputing only a finding of fact made by the Court, which cannot be the subject of an appeal. In its submission, the question whether the first condition laid down in the judgment in Altmark is satisfied is an issue of fact which is to be determined by the General Court, while in such a case the Court of Justice has jurisdiction only to determine whether the General Court distorted the wording of the national provisions at issue, made findings that were manifestly inconsistent with their content and, for the purpose of establishing the content of the national legislation at issue, attributed to all of those particulars a significance which is not appropriate in the light of the other particulars. ( 25 )

43. By the second part of their single plea, the appellants claim that the judgments in question are vitiated by incoherence, insofar as the General Court considered that, in order to come within the broad discretion recognised to the Member States, the choice of a particular technology must be included in the actual definition of the SGEI, ( 26 ) whereas it held, moreover, that in defining the TNO operating service as an SGEI, the Spanish authorities must not discriminate against the other platforms. ( 27 )

44. In any event, the appellants maintain that the General Court erred in law in holding that the definition of the SGEI in question was not sufficiently clear and precise in that it did not mention a particular technology. The wide discretion which the Treaty confers on Member States allows them not only to ‘define’ the SGEI but also to ‘provide, commission and organise’ it, as, moreover, the General Court expressly stated in the judgments in question. ( 28 ) That discretion derives from Protocol No 26 and from Protocol No 29, and also from the case-law of the Court of Justice and the General Court. ( 29 )

45. In the appellants’ submission, the Member States may choose not only to include in the definition of the SGEI the manner in which that service will be provided, but also to provide it or organise it according to the procedures which those Member States deem appropriate, and the Commission cannot question that choice. Thus, by limiting the Member States’ discretion solely to the definition of the SGEI, the General Court erred in law. In that regard, the General Court itself held that the decision at issue was vitiated by an error of law in that it considered that the inclusion of the terrestrial technology in the definition of the SGEI constituted in every case a manifest error of assessment on the part of the authorities of the Member State concerned.

46. Accordingly, the appellants claim that the General Court ought to have required the Commission to examine, in the first place, whether the Member State had made a manifest error in the definition of the SGEI in question, irrespective of whether that definition included an explanation of the actual procedures for the provision of that service. In the second place, the examination ought to have related to whether, in choosing a specific form for the provision of that service, in this instance the terrestrial technology, that Member State had made a manifest error.

47. The Commission contends that the argument on which the second part of the plea is based is ineffective, since it is inconsistent with the General Court’s finding that the Spanish authorities could not rely on the existence of an SGEI in the absence of an award measure, in accordance with EU law, entrusting certain undertakings with the task consisting in providing the service of the operation of the DTT network in Area II. ( 30 )

48. Furthermore, in the Commission’s contention, the wide discretion which the Member States enjoy when defining what they consider to be an SGEI is limited by the obligation to observe the general principles of EU law ( 31 ) and the criterion of proportionality. ( 32 ) Therefore, as the General Court correctly held, ( 33 ) that power is not unlimited and cannot be exercised arbitrarily for the sole purpose of removing a particular sector, such as the telecommunications sector, from the application of the competition rules. ( 34 )

49. SES Astra also contends that the second part of the plea is ineffective, since the national legislation does not clearly define the provision of the terrestrial platform in Area II as an SGEI. Furthermore, insofar as this part of the plea amounts to disputing the findings of fact made by the General Court, it is also inadmissible.

50. In the alternative, SES Astra claims that the appellants misread the judgments in question ( 35 ) when they assert that the General Court merely recognised that the Member States have a discretion only with regard to the definition of the SGEI and not with regard to the provision, commissioning or organisation of the SGEI. In addition, the case-law on which the appellants rely in order to justify the margin of discretion which the Member States enjoy when organising the SGEIs ( 36 ) is not relevant in the present case. Last, SES Astra contends that, according to a consistent line of decisions of the Court of Justice, the discretion which the Member States enjoy is limited by the need to comply with the general principles of EU law. ( 37 ) Thus, when they decide to include a specific technology in the definition of the SGEI, the authorities of the Member States must ensure that they comply with those principles and, in particular, as the General Court held, ( 38 ) with the principle of technological neutrality.

In Case C‑70/16 P, Communidad Autónoma de Galicia, Redes de Telecommunicación Galegas Retegal SA v European Commission

51. The present appeal is based on four pleas in law. As indicated in point 2 above, I shall focus in my Opinion on the first and second parts of the fourth plea.

52. The first part of the fourth plea alleges an error of law consisting in ignoring the discretion which the Member States enjoy when defining an SGEI.

53. In that regard, the appellants claim that the General Court merely excluded, as a matter of principle, the possibility that the operation of a terrestrial digital television network might be defined as a public service. They maintain that the General Court failed to analyse the 12th Additional Provision of Royal Decree 944/2005 for the purposes of determining whether the conditions required by the judgment in Altmark in order to define the support service in Area II as a public service are satisfied. In the appellants’ submission, Royal Decree 944/2005 authorises the territorial administrations to carry out that activity, which, in the absence of that provision, they would be prohibited from doing. That national provision entails, ultimately, the conferral of a genuine public power, in order to provide a public service. They observe that the public service task was subsequently given concrete form in successive acts ‘through: (i) the partnership framework agreement and the subsequent addendum thereto, concluded between the general administration of the State and the Autonomous Community of Galicia in the context of the digitisation process and, next, through (ii) the cooperation agreements entered into between the Autonomous Community of Galicia and the various municipalities in Area II …’.

54. The appellants claim that the service as conceived and as provided on the conditions laid down in the 12th Additional Provision of Royal Decree 944/2005 and in the cooperation agreements between administrations is a public service, the provision of which is reserved for the public administrations in Area II and which is therefore, at EU level, an SGEI. They claim that the official acts entrust the public service task to the municipalities, in partnership with the Autonomous Community. They observe that the intervention of the public authorities of Galicia did not consist in creating a network capable of commercial operation, or in operating the network thus created, but in adapting the network of existing analogue centres belonging to the municipalities, in order thus to be able to continue to provide their citizens with the service supporting the television signal on the conditions laid down in the 12th Additional Provision of Royal Decree 944/2005.

55. As to whether the public service obligations are indeed defined in the official acts, the applicants observe that the 12th Additional Provision of Royal Decree 944/2005 states that the service the provision of which is entrusted to the territorial administration is the ‘broadcasting of the digital terrestrial television service to their citizens’. Nor, in their further submission, does the binding and universal nature of the public service task give rise to any doubt in the light of the official acts which entrust the task in question to them.

56. The appellants observe that, according to settled case-law, Member States have a wide discretion to define what they regard as SGEIs and that definition can be questioned by the Commission only in the event of ‘manifest error’. ( 39 ) In their submission, the extent of the General Court’s review of the Commission’s assessments must necessarily take that limitation into account. That review must nevertheless ensure respect for certain minimum criteria relating to the presence of an act of the public authority entrusting the operators in question with an SGEI mission, ( 40 ) and to the universal and compulsory nature of that mission. ( 41 ).

57. The appellants maintain that the General Court exceeded the limits of that review and that manifest errors were made, which led it to conclude that there was no act of a public authority entrusting a public service mission. The General Court thus failed to have regard to, and committed a breach of, the discretion and the margin of appreciation which the Member States enjoy when defining an SGEI.

58. The appellants further observe that a ‘wide discretion of national, regional and local authorities in providing, commissioning and organising’ those services is the formula employed in Protocol No 26, which the General Court in turn employed in paragraph 95 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901).

59. According to the appellants, the discretion which the Treaty affords to Member States includes both the power to ‘define’ and the power to ‘provide, commission and organise’ those services, which also empowers the national authorities to choose the means whereby the service will be provided, by choosing, in particular, a specific supporting platform and, accordingly, to validly choose the mode of public intervention by the regional and local authorities of Galicia. They maintain in that respect that the recognition, in paragraph 95 of the judgment in question, of the discretion at issue is purely formal, as that power is not reflected, to the degree which it occupies in the Treaty, in its actual application to the present case by the General Court, which distorted it, rendered it devoid of content and ignored it.

60. As regards the first part of the fourth plea, the Commission claims, in particular, that the appellants do not dispute the finding made by the General Court in paragraph 110 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), that they ‘were not in a position to determine which public service obligations were entrusted to the operators of the DTT networks, either by the Spanish law or by the operating agreements, still less to have adduced evidence of those obligations’. According to the Commission, that finding (which is not criticised in the appeal and which contains an assessment of the value of the evidence) would suffice in itself to show that the first condition in the judgment in Altmark was not satisfied, although that condition is necessary for the application of Article 106(2) TFEU.

61. SES Astra maintains that the first part of the fourth plea is ineffective, since, when the national legislation does not clearly define the service in question as an SGEI, the question of the discretion conferred on the Member States is irrelevant. In addition, the appellants’ arguments seek in reality to challenge the findings of fact made by the General Court with respect to the first condition in the judgment in Altmark and are therefore inadmissible in an appeal.

62. In the alternative, in the event that the Court should declare the first part admissible — quod non –, SES Astra is of the view that it is unfounded, since the General Court recognised that the Member States have a discretion not only when defining SGEIs but also when providing, commissioning and organising them. ( 42 ) Thus, the first condition in the judgment in Altmark ( 43 ) also requires, in addition to the definition of the SGEI by the Member State concerned, that the recipient undertaking be entrusted with public service obligations, which is not the case here. SES Astra submits that, be that as it may, the Member State concerned cannot exercise its discretion when defining SGEIs in a manner that is contrary to the general principles of EU law ( 44 ) and, in particular, to the principle of technological neutrality.

63. The second part of the fourth plea alleges that the General Court failed to have regard to the limit of a manifest error, in the context of its examination of the national law defining the SGEI in question.

64. The appellants take issue with the General Court for having limited its assessment to the fact that there was no clear and precise definition of the SGEI in question, without having determined, in paragraph 112 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), ( 45 ) whether the definition of that service by the Spanish authorities was manifestly incorrect. In their submission, the General Court erred in law by disregarding the fact that the Member States’ discretion allows them to choose a particular method of implementing the SGEIs, as, in this instance, the terrestrial platform. In that regard, the appellants point to a contradiction with paragraph 78 of the judgment of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), where the General Court held that the Commission had been wrong to find, in recital 121 of the decision at issue, that the Spanish authorities had made a manifest error when defining the SGEI in question. The appellants thus claim that, given a market failure in the area concerned and an objective of universality laid down in the relevant national law, the definition of that service contained the essential elements for its definition as an SGEI.

65. The Commission is of the view that the second part of the fourth plea is inadmissible in an appeal. First, it claims that recital 121 of the decision at issue ( 46 ) was not criticised by the appellants at first instance and that the General Court was not required to review that aspect of the decision at issue of its own motion. Second, the Commission claims that a party cannot alter the subject matter of the dispute by raising for the first time before the Court of Justice a plea which it could have raised before the General Court, as that would amount to allowing it to bring before the Court of Justice a wider dispute than that on which the General Court was required to adjudicate. In any event, the Commission emphasises that, as regards the substance, the second part of the appellants’ plea is ‘not admissible’, since it follows, in particular, from the case-law of the Court of Justice and the General Court that the discretion which the Member States enjoy in organising the SGEIs cannot be exercised in a manner contrary to the principle of technological neutrality. ( 47 )

66. SES Astra contends, in essence, for the same reasons as those put forward by the Commission, that this part of the fourth plea is manifestly inadmissible. In addition, in the event that the Court should decide that the SGEI at issue was clearly defined, SES Astra maintains that, in defining that SGEI, the Spanish authorities in any event made a manifest error of assessment with regard to the principle of technological neutrality. It contends that, in that regard, the Commission sets out to the requisite legal standard the reasons for its finding as to the compatibility of the aid set out in 121 and 152 to 167 of the decision at issue.

67. In their reply, the appellants maintain that the arguments whereby the Commission and SES Astra allege that the present part of the fourth plea is inadmissible are unfounded. They submit that they cannot be accused of not having criticised at first instance the considerations set out in recital 121 of the decision at issue, since those considerations did not relate to Galicia but to the Basque Country.

In Case C‑81/16 P, Kingdom of Spain v European Commission

68. The present appeal is based on two pleas in law. As indicated in point 2 of this Opinion, I shall focus my conclusions on the first part of the first plea.

69. The first plea alleges an error in law relating to the Member States’ control of the definition and application of an SGEI.

70. By the first part of the first plea, the Kingdom of Spain criticises paragraphs 53 to 78 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), which apply the General Court’s reasoning concerning the first condition laid down in the judgment in Altmark.

71. The Kingdom of Spain claims that that reasoning is based on three flawed premisses. First, the General Court held that there was no need to take into consideration, in addition to the legal framework, all the acts of the Spanish authorities whereby the operators concerned were entrusted with the performance of public service obligations. Second, the General Court held that the Kingdom of Spain had not provided it with any contract imposing public service obligations. Third, according to the General Court, no Autonomous Community other than the Basque Country put forward an argument capable of showing that the operation of the terrestrial network was a public service.

72. In the first place, the Kingdom of Spain maintains that the General Court’s analysis of the legal framework is manifestly wrong. General Law 32/2003 on telecommunications of 3 November 2003 expressly classifies the operation of the radio and television networks as an SGEI and it is not possible, in the light of the case-law, to ignore the relevance of that on the ground that it applies to all and not to some operators in the sector. ( 48 )

73. In the second place, the acts of national law and the contracts concluded by the Spanish authorities not only define the SGEIs and entrust their implementation to certain operators, but they also refer expressly to terrestrial technology. Those acts were taken into account by the Commission ( 49 ) and by the General Court when they concluded that there was State aid.

74. In that regard, the Kingdom of Spain claims that the evidence that could be adduced in the context of the judicial procedure, in this instance the contracts imposing public service obligations, are not relevant when reviewing the lawfulness of a Commission decision. ( 50 ) In addition, among the procedural obligations to be observed is the obligation for the Commission to examine, carefully and impartially, all the relevant elements and to state the grounds on which its decision is based. ( 51 ) In this instance, according to the Kingdom of Spain, the Commission ought to have taken into account the calls for tenders, which, as is apparent, moreover, from the description of the aid measure given in the decision at issue, ( 52 ) are an integral part of those measures.

75. In the third place, the Kingdom of Spain maintains that the General Court was not entitled to assert that no Autonomous Community other than the Basque Country had demonstrated that the operation of the terrestrial network was an SGEI, since it is apparent from the decision at issue that the Commission examined a sample of 82 calls for tenders in order to assess the compatibility of the aid. ( 53 )

76. According to the Kingdom of Spain, the General Court ‘refused to ascertain whether the Commission had indeed examined all the relevant elements for the purposes of assessing the definition of a public service. As indicated in the application [before the General Court], when it conducted the investigation in the present case, the Commission did not carry out a thorough examination before reaching the conclusion that a mission of general interest was or was not entrusted to the undertaking. It therefore did not ascertain whether the Member State had made a manifest error in the exercise of its discretion when assigning the mission in question.’

77. In the reply, the Kingdom of Spain observes that the first part of the first plea concerns the General Court’s refusal to ascertain whether the Commission had indeed examined all the relevant elements for the purpose of assessing the definition of a public service. It maintains that when the Commission conducted the investigation in the present case it did not carry out a thorough examination that would have enabled it to determine whether a mission of general interest had or had not been entrusted to the undertaking. In the Kingdom of Spain’s submission, the General Court erred in law in failing to ascertain whether the Commission had carried out that analysis.

78. The Commission contends that the first part of the first plea is ineffective and in any event is inadmissible and unfounded.

79. First, in the Commission’s submission, the Kingdom of Spain’s criticisms refer to a ground in the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891) that was included purely in the interest of completeness, and the first part of the plea is therefore ineffective. In that regard, the General Court rejected to the requisite standard the first condition in the judgment in Altmark in paragraph 74 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), ( 54 ) which is not the subject of the appeal.

80. Second, the present part of the plea is also inadmissible insofar as the Kingdom of Spain disputes the General Court’s assessment of the contracts and of national law, which is not amenable to review by the Court of Justice. In that regard, the Kingdom of Spain does not claim that there has been any distortion of national law and, even if its arguments were to be understood in that sense, it confines itself to mere assertions.

81. Third, this part of the plea is also unfounded, insofar as the Kingdom of Spain did not put before the General Court any element from which it might be concluded that the service consisting in broadcasting the signal by means of a specific platform could be characterised as an SGEI.

82. On this point, the Commission claims that neither the national law, nor the other regulations or the case-law of the Spanish Supreme Court allow such a conclusion to be reached. On the contrary, the national law reserves the status of ‘public service’ to a limited number of services, such as telecommunications for the national defence and civil protection or the universal telephone service. In the Commission’s contention, the expression ‘service of general interest’ in General Law 32/2003 on telecommunications of 3 November 2003 designates an economic activity which is of interest to the community but is not necessarily linked with a public service mission within the meaning of Spanish law, nor is it necessarily an SGEI within the meaning of the first condition in the judgment in Altmark or Article 106(2) TFEU.

83. In addition, the Kingdom of Spain’s argument concerning the broadcasters’ coverage obligations in Area II does not call in question paragraphs 67 and 68 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891).

84. Furthermore, the Kingdom of Spain’s arguments concerning the alleged failure to take the public contracts into account are ineffective, since they refer to paragraph 71 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), which states a ground that is included purely for the sake of completeness. In addition, in the Commission’s contention the Kingdom of Spain is confusing the review of legality, which the General Court must carry out in an action for annulment, with a review of the General Court’s own motion, which it is not required to carry out. ( 55 ) Thus, the Kingdom of Spain’s appeal may be summarised as taking issue with the General Court for not having raised of its own motion pleas or evidence on which that Member State did not itself rely before that Court. The General Court’s conclusion is therefore not vitiated by any error of law.

Analysis

The connection between Article 107(1) TFEU, the judgment in Altmark and Article 106(2) TFEU

85. The compensation granted by Member States for providing a public service ( 56 ) or an SGEI ( 57 ) is subject to compliance with the rules laid down by the EU legislature in Articles 107 and 108 TFEU. ( 58 )

86. It is settled case-law that classification as ‘aid’ for the purposes of Article 107(1) TFEU requires that all the conditions set out in that provision are satisfied. Thus, in order for a national measure to be categorised as State aid, first, there must be an intervention by the State or through State resources; second, that intervention must be liable to affect trade between Member States; third, it must confer an advantage on its beneficiary; and, fourth, it must distort or threaten to distort competition. ( 59 )

87. Since those conditions are cumulative, a State measure cannot be characterised as State aid if one of them is not satisfied. ( 60 )

88. As regards the third condition laid down in Article 107(1), namely the existence of an advantage conferred on a recipient undertaking, interventions which, in any form whatsoever, are liable to favour undertakings directly or indirectly, or which must be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions, are considered to be State aid. ( 61 )

89. In paragraph 87 of the judgment in Altmark, the Court held that ‘where a State measure must be regarded as compensation for services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article [107(1) TFEU]’.

90. According to the Court, such compensation may avoid being characterised as State aid if four conditions set out in paragraphs 89 to 93 of the judgment in Altmark ( 62 ) are satisfied. ( 63 )

91. It should be noted that if the four conditions laid down in the judgment in Altmark are not satisfied and the State measure constitutes State aid, ( 64 ) that measure may still be justified, in particular, by the derogation provided for in Article 106(2) TFEU. ( 65 )

92. Article 106(2) TFEU, read in conjunction with paragraph 1 of that article, may be relied on to justify the grant by a Member State to an undertaking entrusted with the operation of SGEIs of exclusive rights which are contrary to the provisions of the FEU Treaty, to the extent to which performance of the particular task assigned to that undertaking can be assured only by the grant of such rights and provided that the development of trade is not affected to an extent contrary to the interests of the Union. ( 66 )

93. As regards the relationship between Article 107(1) TFEU, the conditions imposed by the judgment in Altmark and Article 106(2) TFEU, the Court has held that ‘verification of the conditions laid down in [the judgment in Altmark] occurs upstream, that is to say in the examination of the issue of whether the measures at issue must be characterised as State aid [in accordance with Article 107(1) TFEU]. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU’. ( 67 )

94. According to the Court, the conditions laid down in the judgment in Altmark are therefore no longer to be applied where the Commission, having found that a measure must be characterised as aid, determines whether that aid can be justified under Article 106(2) TFEU. ( 68 ) In that regard, the Court held in paragraph 38 of the judgment of 8 March 2017, Viasat Broadcasting UK v Commission (C‑660/15 P, EU:C:2017:178), that Article 106(2) TFEU did not require the Commission to take into consideration the second and fourth conditions laid down in the judgment in Altmark in order to decide whether State aid was compatible with the internal market under that provision.

95. In fact, as regards the application of Article 106(2) TFEU, the General Court held (rightly in my view) in paragraph 61 of the judgment of 24 September 2015, Viasat Broadcasting UK v Commission (T‑125/12, EU:T:2015:687), that three conditions must be satisfied in order for State aid granted as compensation for discharging public service obligations to be regarded as compatible with the internal market in accordance with Article 106(2) TFEU. According to the General Court, ‘the first condition, relating to the definition of public service, requires that the service at issue actually be a service of general economic interest and be clearly defined as such by the Member State. The second condition, relating to the public-service mandate, requires that the recipient undertaking be explicitly entrusted by the Member State with the provision of the public service in question. Finally, the third condition is based on the concept of proportionality. Under that condition, the financing of an undertaking entrusted with public-service obligations must be considered to be compatible with the internal market insofar as the application of the competition rules of the FEU Treaty — in this case, the prohibition of State aid — would obstruct the performance of the particular tasks assigned to that undertaking, and the exemption from the competition rules should not affect the development of trade to an extent that would be contrary to the interests of the European Union’. ( 69 )

96. To my mind, the first two conditions set out above correspond to the first condition laid down in the judgment in Altmark.

97. Although the Court has held that the second and fourth conditions laid down in the judgment in Altmark were not relevant for the purposes of ascertaining whether the derogation provided for in Article 106(2) TFEU applied to State aid, I consider, on the other hand, that a condition equivalent to the first condition laid down in the judgment in Altmark, namely that an undertaking ( 70 ) is actually entrusted with the implementation of public service obligations/SGEIs and that those obligations are clearly defined, must be satisfied in order for the derogation provided for in that provision to apply.

98. In fact, in the judgment of 21 March 1974, BRT and Société belge des auteurs, compositeurs et éditeurs (127/73, EU:C:1974:25, paragraph 22), the Court held that an undertaking which invokes Article 106(2) TFEU in order to rely on a derogation from the rules of the Treaty must in fact be entrusted by the Member State with the operation of an SGEI. ( 71 ) In the judgment of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro (66/86, EU:C:1989:140, paragraph 56), moreover, the Court underlined the need for a clear definition of the SGEI task entrusted to the undertaking in application of Article 106(2) TFEU. ( 72 )

The first condition laid down in the judgment in Altmark ( 73 )

The Member States’ prerogative to designate certain services as an SGEI

99. It is settled case-law that Article 106(2) TFEU seeks to reconcile the Member States’ interest in using certain undertakings as an instrument of economic or social policy with the Union’s interest in ensuring compliance with the rules on competition and the preservation of the unity of the common market. In that context, the Member States are entitled, while complying with EU law, to define the extent and the organisation of their SGEIs. They may in particular take account of objectives pertaining to their national policy. ( 74 )

100. In that context, I consider that the power recognised to Member States to ‘define’ SGEIs implies the power to designate certain services as SGEIs and also to ‘define’ the extent and the organisation of those SGEIs. The designation of SGEIs and the definition of their extent and their organisation by the Member States represent a public policy choice, characterised by a ‘wide discretion’.

101. Although Protocol No 26 does not explicitly provide that the Member States are to have a wide discretion when defining their SGEIs, the first indent of Article 1 of that protocol emphasises the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising SGEIs as closely as possible to the needs of users. In my view, the possibility of providing, commissioning and organising SGEIs is closely connected with and cannot be separated from the right to designate those services.

102. I consider, in accordance with the judgments in question, ( 75 ) that, in the absence of harmonised EU rules on the matter, ( 76 ) the Member States have a wide discretion in defining the services which they regard as SGEIs ( 77 ) and the extent and organisation of those services.

103. Given that wide discretion enjoyed by the Member States, the General Court was correct to hold that, as a general rule, ‘the Commission is not entitled to rule on the extent of public service tasks assigned to the public operator … or the expediency of the political choices made in this regard by the national authorities, or the economic efficiency of the public operator’. ( 78 )

104. Consequently, in accordance with the judgments in question, ( 79 ) the designation by a Member State of services as SGEIs can be challenged by the Commission only in the event of manifest error. ( 80 ) The Commission therefore exercises a restricted control of the designation of services as SGEIs.

105. For the same reasons, when hearing an action for annulment of a Commission decision relating to the designation of services as SGEIs and the definition of the extent and the organisation of those SGEIs by the Member States, the General Court must take into account the wide discretion enjoyed by the Member States and the restricted control exercised by the Commission in that regard.

106. It should be pointed out, however, that, in spite of the wide discretion enjoyed by the Member States when they ‘designate’ their SGEIs, that prerogative is not unlimited.

107. In the judgment of 8 March 2017, Viasat Broadcasting UK v Commission (C‑660/15 P, EU:C:2017:178, paragraph 29), the Court held that ‘the wording of Article 106(2) TFEU itself shows that exemptions to the Treaty rules are permitted provided that they are necessary for performance of the particular tasks assigned to an undertaking entrusted with the operation of [an SGEI]’. ( 81 )

108. Furthermore, in paragraph 26 of the judgment of 10 December 1991, Merci convenzionali porto di Genova (C‑179/90, EU:C:1991:464, paragraphs 26 and 27), the Court held that ‘in order that the derogation [from] the application of the rules of the Treaty set out in [Article 106(2) TFEU] may take effect, it is not sufficient for the undertaking in question merely to have been entrusted by the public authorities with the operation of a service of general economic interest, … it must be shown in addition that the application of the rules of the Treaty obstructs the performance of the particular tasks assigned to the undertaking and that the interests of the [Union] are not affected’. In paragraph 27 of that judgment, the Court considered that the dock work in question was not of a general economic interest exhibiting special characteristics as compared to other activities and that, even if it were, the application of the rules of the Treaty was not such as to obstruct the performance of such a task.

109. In addition, it should be noted that that prerogative of the Member States is exercised under the control of the Commission. In the judgment of 14 July 1971, Muller and Hein (10/71, EU:C:1971:85, paragraphs 14 and 15), the Court held that the application of Article 106(2) TFEU ‘involves an appraisal of the requirements, on the one hand, of the particular task entrusted to the undertaking concerned and, on the other hand, the protection of the interests of the [Union]’ and that ‘this appraisal depends on the objectives of general economic policy pursued by the States under the supervision of the Commission’. ( 82 )

The obligation for the Member State to entrust by an act of a public authority the performance of public service operations to the undertaking in receipt of the public subsidies and to define those obligations clearly

110. Although the Member States enjoy a wide discretion to ‘designate’ certain services as SGEIs and to define the extent and organisation of those services, the first condition laid down in the judgment in Altmark and the wording of Article 106(2) TFEU unequivocally require that an undertaking ( 83 ) be actually entrusted with the implementation of public service obligations ( 84 ) and that those obligations be clearly defined. ( 85 ).

111. Those two requirements, which the General Court has — correctly in my view — described as ‘minimum criteria’, ( 86 ) are clearly separate from the public policy prerogative which the Member States enjoy to designate services as SGEIs.

112. In that regard, it is settled case-law that, in order for an undertaking to be able to be regarded as being entrusted with the operation of a public service/SGEI, it must be so entrusted by an act of the public authority. ( 87 ) That requirement must be applied strictly and it is incumbent on the Member State concerned to establish that the requirement is satisfied in order to benefit from the application of the judgment in Altmark or from the exception provided for in Article 106(2) TFEU. The extent of the judicial review carried out by the General Court in that respect is a review of legality.

113. However, that act of a public authority does not have to be a legislative measure or a regulation. ( 88 ) The Court has already recognised that an undertaking may be entrusted with the operation of SGEIs through the grant of a concession governed by public law. ( 89 )

114. Furthermore, as regards the clear definition of the obligations incumbent on the undertaking entrusted with an SGEI, I consider that although the enumeration and delimitation of those obligations varies from case to case, depending on the specific services involved and the circumstances existing in the different Member States, they must at least include the nature, duration and scope of the obligations imposed. ( 90 ) This requirement, too, is of strict application.

115. Those minimum criteria cannot be purely formalistic obligations. They are designed to ensure, in particular, transparency ( 91 ) in the designation of the SGEIs and the definition of their scope and organisation by the Member States. In addition, that objective of transparency is in turn designed to increase the legal certainty of, in particular, the Member States, the undertakings entrusted with discharging public service obligations, any competitors which they may have and consumers. ( 92 )

116. In effect, the Court has held that for obligations imposed on an undertaking entrusted with the operation of an SGEI to be regarded as falling within the particular tasks entrusted to it, they must be linked to the subject matter of the SGEI in question and designed to make a direct contribution to satisfying that interest. Those obligations or constraints may be taken into consideration for the purposes of considering to what extent derogations from the Treaty rules which it is sought to justify are necessary in order to enable the undertaking in question to perform the tasks of general interest entrusted to it. ( 93 )

117. However, it would be impossible to ascertain whether a Member State has adhered to the limits of its wide discretion in designating SGEIs without knowing with certainty who is entrusted with discharging public service obligations and what is the nature, duration and scope of the obligations to be discharged. ( 94 )

118. In addition, I consider that that requirement for transparency concerning the tasks entrusted is essential for the purposes of ascertaining whether the other conditions laid down in the judgment in Altmark and in Article 106(2) TFEU are satisfied. It would be impossible, in particular, to ascertain whether the third condition in the judgment in Altmark is satisfied, namely that ‘the compensation does not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations …’, if the nature and scope of those obligations are not clearly defined. As regards the application of Article 106(2) TFEU, it would be impossible to ascertain whether the application of rules of the Treaties obstructs the performance of the SGEIs, if the nature and the scope of those services the operation of which is entrusted to the undertakings is not clearly defined. ( 95 )

Application to the present appeals

In Joined Cases C‑66/16 P to C‑69/16 P

119. As a preliminary point, I consider that, contrary to SES Astra’s contention, the first part of the first plea is not inadmissible. ( 96 )

120. By the first part of their first plea, the appellants take issue with the General Court for having misapplied the case-law of the Court of Justice and the General Court, according to which the definition of SGEIs by a Member State can be questioned by the Commission only in the event of manifest error. To my mind, in doing so, and contrary to SES Astra’s contention, ( 97 ) the appellants are not challenging a finding of fact made by the General Court but are asking the Court to examine whether the General Court erred in law ( 98 ) in clarifying the obligations imposed by the first condition laid down in the judgment in Altmark. ( 99 ) Such a point of law is amenable to review by the Court in an appeal.

121. As regards the substance, I consider, contrary to the appellants’ assertions, ( 100 ) that the General Court did not overstep the bounds of manifest error when examining the various acts defining and entrusting the SGEI tasks. In accordance with points 113 to 115 of this Opinion, the requirement actually to entrust the undertaking in receipt of the public subsidies with the performance of public service obligations by an act of a public power, and to define those obligations clearly, is of strict application. The performance of those minimum obligations is not covered by the Member States’ wide discretion to designate services as SGEIs, and it is only that discretion, exercised in course of such designation, that can be questioned by the Commission only in the event of manifest error. ( 101 )

122. The fact that it is common ground that there is a market failure and that the service in question is in material terms an activity that might be characterised as an SGEI is irrelevant. Those circumstances must be taken into account in the analysis of whether a service is suitable for designation as an SGEI, which comes within the wide discretion of the Member States, and which can be questioned only in the event of manifest error. On the other hand, those circumstances are not relevant for the purposes of determining whether the undertaking in receipt of the public subsidies is entrusted with the discharge of public service obligations by a public act and whether those obligations were clearly defined.

123. Consequently, I consider that the first part of the single plea in Cases C‑66/16 P to C‑69/16 P should be rejected as unfounded.

124. By the second part of their single plea, the appellants claim that the General Court made an error of law in limiting the Member States’ wide discretion solely to the definition of the SGEIs, when they also have a wide discretion to ‘provide, commission and organise’ those services. The appellants maintain that the discretion necessarily includes the choice of a specific technology, which, contrary to the findings made in the judgments in question, ( 102 ) is nothing more than a method of providing the service.

125. I consider, as does SES Astra, that the present part of the plea reveals a misreading of the judgments in question. ( 103 )

126. The General Court did not call into question the wide discretion which the Member States ( 104 ) enjoy when ‘providing, commissioning and organising’ SGEIs and choosing a particular technology; it merely found that the appellants had not satisfied the first condition laid down in the judgment in Altmark when it considered, following an evaluation of the Spanish national and regional legislation, that the Kingdom of Spain had not clearly and precisely defined the service consisting in the operation of a terrestrial network as a public service and complying with the first condition laid down in the judgment in Altmark. I observe that the General Court held ( 105 ) that ‘the applicants have not at any time been able to determine what public service obligations were entrusted to DTT network operators, either by Spanish law or by the operating conventions, let alone adduce evidence to that effect’. ( 106 )

127. For the sake of completeness, I observe that, in the case of the judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900), and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), although the General Court considered that, in defining the service consisting in the operation of a DTT network as an SGEI, the Spanish authorities must observe the principle of equal treatment ( 107 ) and must therefore not discriminate against other platforms by comparison with the terrestrial platform, it is clear from those judgments that, according to the General Court, ‘respect for the principle of technological neutrality does not mean that in every case defining a particular platform for the operation of the broadcasting networks constitutes a manifest error’. ( 108 ) The General Court thus took issue with the Commission for not having considered whether the choice of a particular platform was objectively justified in the present cases, taking account of the wide discretion which the Spanish authorities enjoy when defining what they regard as an SGEI. It follows that the General Court recognised that the Member States did indeed have a wide discretion when ‘providing, commissioning and organising’ the SGEIs.

128. Consequently, the second part of the single plea in Cases C‑66/16 P to C‑69/16 P should be rejected as unfounded.

In Case C‑70/16 P

129. As regards the first part of their fourth plea, the appellants maintain that the General Court ignored the discretion which the Member States enjoy when defining an SGEI. ( 109 )

130. I observe that, although the appellants do not directly challenge the finding made by the General Court in paragraph 110 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), they claim that the 12th Additional Provision of Royal Decree 944/2005 and the cooperation agreements between administrations contain a clear definition of the public service in question, namely the digital television terrestrial broadcasting service, and that those official acts entrust that service to the municipalities in partnership with the Autonomous Community. ( 110 )

131. In my view, that argument, which concerns the General Court’s assessment of the applicable national law, must be rejected as inadmissible in the absence of any allegation of distortion of that law. ( 111 )

132. In that regard, it should be borne in mind that the Court of Justice has consistently held that where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review the legal characterisation of those facts and the conclusions in law drawn from them. The assessment of the facts is not therefore, other than in cases where the evidence produced before the General Court has been distorted, a point of law which is subject, as such, to review by the Court of Justice. Thus, with respect to the assessment, in the context of an appeal, of the General Court’s determinations on national law, the Court of Justice has jurisdiction only to determine whether that law was distorted. ( 112 )

133. Consequently, I consider that the first part of the fourth plea in Case C‑70/16 P should be rejected as inadmissible in part.

134. Furthermore, it is clear from paragraph 95 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901) that according to the General Court, ‘Member States have a wide discretion when defining what they regard as an SGEI and, consequently, the definition of such services by a Member State can be questioned by the Commission only in the event of manifest error’.

135. The General Court considered, however, that ‘certain minimum criteria relating, in particular, to the presence of an act of a public authority entrusting the operators in question with the tasks of an SGEI’ ( 113 ) had not been satisfied.

136. In fact, in paragraph 110 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), the General Court asserted that ‘at no time [were] the applicants in a position to determine which public service obligations were entrusted to the DTT network operators, either by the Spanish law or by the operating conventions, let alone to have adduced evidence of such obligations’.

137. Consequently, the General Court held that the appellants had not been in a position to show that the Commission had been wrong to consider that, in the absence of a clear definition of the service consisting in operating a terrestrial network as a public service, the first criterion laid down in the judgment in Altmark was not satisfied. ( 114 )

138. It follows that, contrary to the appellants’ arguments, the General Court did not exclude, ‘as a matter of principle, that the operation of a terrestrial network [might be] defined as a public service’. ( 115 )

139. I therefore consider that the first part of the fourth plea must also be rejected as unfounded. As regards the second part of their fourth plea,, the appellants maintain that the General Court made an error of law in paragraph 112 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), consisting in disregarding the fact that the Member States’ discretion covers not only the establishment but also the provision and organisation of the SGEI. In their submission, the provision of the DTT support service by means of a terrestrial platform is merely a means of organising the provision of the service, which is a matter for the Member State. ( 116 )

140. It follows from Article 127(1) in conjunction with Article 190(1) of the Rules of Procedure of the Court that the introduction of new pleas in law at the stage of the appeal is prohibited. The purpose of those provisions is to ensure, in accordance with Article 170(1) of those Rules of Procedure, that the subject matter of the proceedings before the General Court is not changed in the appeal. ( 117 )

141. To my mind, the effect of the second part of the fourth plea in law in the present appeal is to bring before the Court of Justice a dispute that is wider than the dispute determined by the General Court.

142. In fact, in paragraph 112 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), the General Court found that the appellants did not dispute the Commission’s finding in recital 121 of the decision at issue that the definition of the operation of a particular supporting platform, in that instance the operation of the terrestrial platform, as a public service would have constituted a manifest error, because, where several transmission platforms exist, one particular platform cannot be considered to be ‘essential’ for the transmission of broadcasting signals.

143. Accordingly, I consider that the second part of the fourth plea should be rejected as inadmissible.

In Case C‑81/16 P

144. As regards the first part of the Kingdom of Spain’s first plea and, in particular, the Kingdom of Spain’s argument that the General Court’s analysis of the legal context is manifestly incorrect ( 118 ) and that the acts of national law and the contracts concluded by the Spanish authorities not only define the SGEI and entrust its operation to certain operators, but also refer expressly to the terrestrial technology, ( 119 ) I consider that that argument, which calls in question the General Court’s assessment of the applicable national law and of the contracts concluded by the Spanish authorities, which is a finding of fact, must be rejected as inadmissible in the absence of an allegation that that law was distorted. ( 120 )

145. Accordingly, I consider that the first part of the Kingdom of Spain’s first plea should be rejected as inadmissible.

146. As for the substance, I consider that the first part of the Kingdom of Spain’s first plea reveals a misreading of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891).

147. Contrary to the Kingdom of Spain’s assertion, ( 121 ) the General Court did not decide that there was no need to take into consideration, apart from the legal context, all the acts of the Spanish authorities whereby the operators concerned were entrusted with the performance of public service obligations.

148. It is clear from paragraph 69 et seq. of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), that the General Court examined the acts of the Spanish authorities whereby the operators concerned were entrusted, according to the Kingdom of Spain, with the performance of public service obligations.

149. In paragraph 70 of the judgment in question, the General Court examined the national programme promoting the switch to DTT adopted by the Spanish Council of Ministers on 7 September 2007 and considered that, by that programme, no operator had been entrusted with the performance of public service obligations.

150. In paragraph 71 of that judgment, the General Court confirmed that, according to the case-law, the mandate entrusting the public service mission may encompass contractual acts, provided that they emanate from the public authority and are binding, a fortiori where such acts give effect to the obligations imposed by the legislation. However, according to the General Court, the Kingdom of Spain has provided no contract that would substantiate its assertion that the operators concerned were entrusted with the performance of public service obligations. In addition, according to the General Court, the mere fact that a service forms the subject matter of a public contract does not mean that that service automatically assumes, without any specific explanation on the part of the authorities concerned, the status of a SGEI within the meaning of the judgment in Altmark.

151. Furthermore, in paragraph 72 of the judgment in question, the General Court examined the interinstitutional conventions concluded between the Basque Government, EUDEL and the three Basque Regional Councils. It considered that those conventions also did not define the operation of a terrestrial network as a public service.

152. In addition, in paragraph 73 of the judgment in question, the General Court established that the Spanish authorities had not at any time been in a position to determine which public service obligations were entrusted to the operators of DTT networks either by Spanish law or by the operational conventions, still less to adduce evidence of such obligations.

153. I also consider, as does the Commission, that the General Court did not err in considering that the Kingdom of Spain did not demonstrate that the Commission had been wrong to find, in recitals 119 to 122 and 172 of the decision at issue, that the deployment, maintenance and operation of the DTT network in Area II had not been precisely defined as a public service within the meaning of the first condition laid down in the judgment in Altmark.

154. In that regard, the issue is not the wide discretion which the Member States enjoy when defining their SGEIs, in the absence of harmonised EU regulations, but the requirement, in accordance with the first condition laid down in the judgment in Altmark and also in the wording of Article 106(2) TFEU, that the undertaking in receipt of the public subsidies has actually been entrusted with the performance of public service obligations and that those obligations have been clearly defined.

155. I observe that, in paragraph 67 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), the General Court established that although all telecommunications services, including the radio and television broadcasting networks, were classified by the Spanish State as a service of general interest, it did not follow from the laws in question that all telecommunications services in Spain assumed the status of SGEIs. In that regard, the General Court observes that Article 2(1) of General Law 32/2003 on Telecommunications of 3 November 2003 expressly provides that services of general interest within the meaning of that law must be supplied in the context of a framework of free competition, whereas the classification of a service as an SGEI within the meaning of the first condition laid down in the judgment in Altmark requires that responsibility for its management be entrusted to certain undertakings. Furthermore, in paragraph 68 of the judgment in question, the General Court considered that, as the national provisions were technologically neutral and telecommunications were the transmission of signals through any telecommunications network and not through the terrestrial network in particular, which the Kingdom of Spain did not dispute, it could not be concluded that the Commission had erred in considering that the operation of a terrestrial network was not defined as a public service within the meaning of the judgment in Altmark.

156. In the light of the equivocal and contradictory aspects of the national provisions in question, the substance of which, moreover, is not disputed by the Kingdom of Spain, the General Court did not err in law in holding that the Commission had not been wrong to consider that those national provisions did not contain a clear definition of the service consisting in the operation of a terrestrial network as a public service.

157. Last, I do not agree with the Kingdom of Spain’s argument that the General Court was not entitled to assert that no Autonomous Community other than the Basque Country had demonstrated that the operation of the terrestrial network had the status of an SGEI, insofar as the Commission had examined a sample of 82 calls for tenders for the purpose of assessing the compatibility of the aid. ( 122 )

158. It is apparent from paragraph 77 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), that the General Court considered that it was for the Autonomous Communities to claim the absence of State aid, in accordance with the judgment in Altmark, and that, as the best and only example, those authorities had put forward the case of the Autonomous Community of the Basque Country.

159. In my view, the fact that the Commission had examined a sample of 82 calls for tenders for the purpose of assessing the compatibility of the aid in question does not show that an Autonomous Community other than the Basque Country had demonstrated, or indeed claimed, that the operation of the terrestrial network had the status of an SGEI.

160. In that regard, it should be borne in mind that, in paragraph 71 of the judgment in question, the General Court confirmed that the mandate entrusting the public service mission may also in certain circumstances encompass contractual acts. However, the General Court considered that the Kingdom of Spain had not demonstrated that a mandate to perform a public service mission had been entrusted by public contracts concluded between the public administration and the operators concerned. It added, correctly, that the mere fact that a service forms the subject matter of a public contract does not mean that that service automatically assumes, without any specific explanation on the part of the authorities concerned, the status of an SGEI within the meaning of the judgment in Altmark.

161. Accordingly, I consider that the first part of the Kingdom of Spain’s first plea is unfounded.

162. On the basis of the foregoing, the first part of the Kingdom of Spain’s first plea should therefore be rejected as inadmissible and unfounded.

Conclusion

163. In the light of the foregoing considerations, I propose that the Court should: – in the Joined Cases Comunidad Autónoma del País Vasco and Itelazpi v Commission (C‑66/16 P), Comunidad Autónoma de Cataluña and CTTI v Commission (C‑67/16 P), Navarra de Servicios y Tecnologías v Commission (C‑68/16 P) and Cellnex Telecom and Retevisión I v Commission (C‑69/16 P), reject the first and second parts of the single plea as unfounded; – in the Case of Comunidad Autónoma de Galicia and Redes de Telecomunicación Galegas v Commission (C‑70/16 P), reject the first part of the fourth plea as inadmissible in part and unfounded, and reject the second part of the fourth plea as inadmissible; and – in the Case of Spain v Commission (C‑81/16 P), reject the first part of the first plea as inadmissible and unfounded.

( 1 ) Original language: French.

( 2 ) See points 20 and 21 of this Opinion.

( 3 ) See points 20 and 21 of this Opinion.

( 4 ) In accordance with paragraphs 89 to 93 of the judgment in Altmark, public subsides do not constitute State aid in accordance with Article 107 TFEU if those subsidies satisfy four cumulative conditions, namely, first, the recipient undertaking is actually required to discharge public service obligations and those obligations have been clearly defined; second, the parameters on the basis of which the compensation is calculated have been established beforehand in an objective and transparent manner; third, the compensation does not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations; fourth, where the undertaking which is to discharge public service obligations is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided … so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.

( 5 ) In February 2008, the Ministerio de Industria, Turismo y Comercio (Ministry of Industry, Tourism and Trade, Spain) (‘the MITC’) adopted a decision known as the ‘Plan Avanza’ aimed at improving the telecommunications infrastructures and establishing the criteria and the distribution of the funding of the actions aimed at developing the Information Society. The budget approved under that decision was allocated to a large extent to the digitisation of television in Area II. Between July and November 2008, that digitisation was pursued by means of various addenda to framework conventions already in force, signed by the MITC and the Autonomous Communities in the context of the Plan Avanza. The MITC then transferred funds to the Autonomous Communities, which undertook to cover with their own budgetary resources the other expenditure associated with the operation. In October 2008, the Spanish Council of Ministers decided to allocate additional funding in order to extend and supplement the coverage of DTT in the context of the digitisation projects to be implemented in the first half of 2009. The funding was granted following the signing of new framework agreements between the MITT and the Autonomous Communities in December 2008 relating to the implementation of the national plan for the transition to DTT. The Council of Ministers also approved the criteria for the distribution of the funds allocated for the funding of the switch to DTT. Subsequently, the Autonomous Communities implemented the process for extending DTT. In order to do so, they organised calls for tenders or entrusted public undertakings with the organisation of that extension. In some cases, the Autonomous Communities asked the municipal authorities to implement the extension. Two types of calls for tenders were launched in Spain. The first type of calls for tenders related to the extension of the coverage of DTT, which meant that the winning tenderer was entrusted with the mission of providing an operating DTT network. The tasks to be carried out included the design and engineering of the network, transport of the signal, deployment of the network and supply of the necessary equipment. The second type of calls for tenders related to the supply of telecommunications equipment.

( 6 ) The present description of the decision at issue is not exhaustive. It is intended only to summarise the sections of the decision which are relevant to the common plea raised by the present appeals.

( 7 ) See recital 94 of the decision at issue.

( 8 ) See recitals 100 to 108 of the decision at issue.

( 9 ) See recitals 109 to 122 of the decision at issue.

( 10 ) See recital 113 of the decision at issue.

( 11 ) See recital 114 of the decision at issue.

( 12 ) See recitals 119 to 126 of the decision at issue and point 20 of this Opinion.

( 13 ) See recital 172 of the decision at issue and point 21 of this Opinion.

( 14 ) ‘General Law 11/1998 … on Telecommunications [of 24 April 1998.]’

( 15 ) ‘These include services related to public defence and civil protection and operation of telephony network.’

( 16 ) ‘General Law 32/2003 … on Telecommunications [of 3 November 2003.]’

( 17 ) ‘Article 2.1. of this law provides: “The telecommunications services are services of general interest provided under the rules of free competition”.’

( 18 ) ‘Annex II to [General Law 32/2003 … on Telecommunications of 30 November 2003] contains precise, technologically neutral, definitions of the telecommunications and electronic communications network.’

( 19 ) ‘Recitals 6 and 7 and Article 5 of the Conventions.’

( 20 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraph 79); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraph 80); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraph 119); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraph 110).

( 21 ) See footnote 4 of this Opinion.

( 22 ) Case C‑66/16 P, Comunidad Autónoma del País Vasco and Itelazpi SA, Case C‑67/16 P, Comunidad Autónoma de Cataluña and Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (CTTI), Case C‑68/16 P, Navarra de Servicios y Tecnologías and Case C‑69/16 P, Cellnex Telecom SA and Retevisión I SA.

( 23 ) See, in particular, order of 11 February 2015, Orange v Commission (C‑621/13 P, not published, EU:C:2015:114), and judgments of 15 June 2005, Olsen v Commission (T‑17/02, EU:T:2005:218, paragraph 216) and of 12 February 2008, BUPA and Others v Commission (T‑289/03, EU:T:2008:29, paragraphs 166 to 169).

( 24 ) Judgments of 11 July 2014, DTS Distribuidora de Televisión Digital v Commission (T‑533/10, EU:T:2014:629, paragraph 117) and of 16 July 2014, Zweckverband Tierkörperbeseitigung v Commission (T‑309/12, not published, EU:T:2014:676, paragraph 170).

( 25 ) Judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452, paragraph 53).

( 26 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraphs 54, 55, 58, 62, 75, 77 and 78); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraphs 54, 55, 58, 62, 75, 77 and 78); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraphs 89 to 119); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraphs 83, 84, 87 and 109).

( 27 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraph 77); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraph 78); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraph 105).

( 28 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraph 50); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraph 50); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraph 97); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraph 79).

( 29 ) The appellants cite, as regards the Court’s case-law, judgments of 23 October 1997, Commission v Netherlands (C‑157/94, EU:C:1997:499, paragraphs 54 to 65); of 23 October 1997, Commission v France (C‑159/94, EU:C:1997:501, paragraphs 101 to 108); of 21 September 1999, Brentjens’ (C‑115/97 to C‑117/97, EU:C:1999:434, paragraph 104); and of 20 April 2010, Federutility and Others (C‑265/08, EU:C:2010:205, paragraph 29).

( 30 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraphs 54, 55, 58 and 59); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraphs 54, 55, 58 and 59); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraphs 101, 102 and 105); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraphs 83, 84, 87 and 88).

( 31 ) Judgment of 20 April 2010, Federutility and Others (C‑265/08, EU:C:2010:205, paragraph 33).

( 32 ) Judgment of 21 December 2011, ENEL (C‑242/10, EU:C:2011:861, paragraphs 50 and 55).

( 33 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraph 51); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraph 51); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraph 98); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraph 80).

( 34 ) Judgment of 12 February 2008, BUPA and Others v Commission (T‑289/03, EU:T:2008:29, paragraph 168).

( 35 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902, paragraph 50); of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900, paragraph 50); of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899, paragraph 97); and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898, paragraph 79).

( 36 ) Judgments of 23 October 1997, Commission v Netherlands (C‑157/94, EU:C:1997:499, paragraph 58 et seq.); of 23 October 1997, Commission v Italy (C‑158/94, EU:C:1997:500, paragraph 54 et seq.); and of 23 October 1997, Commission v France (C‑159/94, EU:C:1997:501, paragraph 101 et seq.).

( 37 ) Judgments of 20 April 2010, Federutility and Others (C‑265/08, EU:C:2010:205, paragraph 29) and of 21 December 2011, ENEL (C‑242/10, EU:C:2011:861, paragraphs 50 and 55).

( 38 ) Judgments of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v