Judgment of the General Court (Fifth Chamber) of 15 December 2016 — Spain v Commission

(Case T‑808/14)

(State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less-urbanised areas of Castilla-La Mancha — Decision declaring the aid incompatible with the internal market — Concept of ‘undertaking’ — Economic activity — Advantage — Service of general economic interest — Distortion of competition — Article 107(3)(c) TFEU — Duty of diligence — Reasonable period — Legal certainty — Equal treatment — Proportionality — Subsidiarity — Right to information)

1. Acts of the institutions—Amendment of a final decision on State aid—Conditions (Art. 108(2) TFEU; Council Regulation No 2015/1589, Art. 11) (see paras 40, 43-45)

2. State aid—Concept—Grant of an advantage to the beneficiaries—Receipt of funds intended for the improvement and extension of the terrestrial digital television network in remote and less-urbanised areas—Included (Art. 107(1) TFEU) (see para. 49)

3. Competition—EU rules—Addressees—Undertakings—Concept—Exercise of an economic activity—Deployment, maintenance and operation of digital terrestrial television in remote and less-urbanised areas—Existence of a market—No exercise of State prerogatives—Included (Art. 107(1) TFEU) (see paras 55-66)

4. State aid—Concept—Assessment according to the criterion of the private investor—Requirement to compare the conduct of a public investor with a private holding company or groups of undertakings guided by prospects of profitability in the long term (Art. 107(1) TFEU) (see paras 69-72)

5. State aid—Concept—Implementation of the private investor test—Discretion of the Commission—Judicial review—Limits (Art. 107(1) TFEU) (see para. 73)

6. State aid—Concept—Assessment according to the criterion of the private investor—State shareholder of an undertaking—State acting as a public authority—Distinction as regards application of the private investor criterion—Information needed for an assessment (Art. 107(1) TFEU) (see paras 76, 81)

7. State aid—Concept—Assessment according to the criterion of the private investor—Assessment of all factors relevant to the transaction at issue and its context—Account taken of available information and foreseeable developments at the time the decision on the measure in question was taken (Art. 107(1) TFEU) (see para. 82)

8. State aid—Concept—Measures designed to compensate for the cost of public service missions undertaken by an undertaking—First condition set out in the Altmark judgment—Clearly defined public service obligations—No recipient undertaking actually entrusted with carrying out public service obligations—Inclusion in the concept—Weakening of the market—Fact not sufficient for a finding that a service of general economic interest exists (Art. 107(1) TFEU) (see paras 89, 96-98, 102-107)

9. State aid—Examination by the Commission—Assessment of legality by reference to the information available at the time the decision adopted (Art. 108 TFEU) (see para. 107)

10. State aid—Effect on trade between Member States—Adverse effect on competition—Criteria for assessment (Art. 107 TFEU) (see paras 117, 118)

11. State aid—Adverse effect on competition—Satellite and terrestrial platforms for the provision of digital television services—Area falling within the competitive sector (Art. 107(1) TFEU) (see para. 121)

12. State aid—Prohibition—Exceptions—Discretion of the Commission—Judicial review—Limits (Art. 107(3)(c) TFEU) (see paras 127, 129)

13. Acts of the institutions—Statement of reasons—Obligation—Scope (Art. 296 TFEU) (see para. 140)

14. Judicial proceedings—Application initiating proceedings—Formal requirements—Brief summary of the pleas in law on which the application based (Rules of Procedure of the General Court, Art. 76) (see para. 153)

15. EU law—General principles of law—Right to sound administration—Diligent and impartial consideration of the case—Commission decision on State aid (Art. 107(3)(c) TFEU) (see para. 154)

16. State aid—Commission decision to open a formal investigation procedure into a State measure—Provisional nature of the Commission’s assessments—Consequences (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 6(1)) (see para. 166)

17. State aid—Examination by the Commission—Examination of an aid scheme as a whole—Lawfulness (Arts 107(3) TFEU and 108 TFEU) (see para. 168)

18. State aid—Examination by the Commission—Opening of a formal examination procedure—Maximum period of two months—Inapplicable where aid not notified—Obligation to complete both the preliminary investigation procedure and the formal investigation procedure within a reasonable time—Assessment of actual situation (Art. 108 TFEU; Council Regulation No 659/1999, Arts 4(5), 7(6), and 13(2)) (see paras 172-175)

19. State aid—Recovery of unlawful aid—No breach of principle of proportionality (Art. 108 TFEU) (see paras 194, 206-209, 213, 214)

20. State aid—Decision of the Commission finding aid incompatible with the internal market and ordering its recovery—Possibility of the Commission leaving to national authorities the task of calculating the precise amount to recover—Duty of cooperation between the Commission and the Member State in the event of difficulties encountered by the State—Scope (Arts 107 TFEU and 108 TFEU; Council Regulation No 994/98, Art. 2; Commission Regulation No 1998/2006) (see paras 196, 197, 199, 203)

21. State aid—Examination by the Commission—Exclusive competence—Review of the compatibility of aid with the internal market—Judicial review—No undermining of the principle of subsidiarity (Art. 5(3) TEU; Arts 107(3) TFEU and 108 TFEU) (see para. 220)

Re:

APPLICATION based on Article 263 TFEU and seeking the annulment of Commission Decision C(2014) 6846 final of 1 October 2014 on State aid SA.27408 ((C 24/2010) (ex NN 37/2010, ex CP 19/2009)) implemented by the authorities of Castilla-La Mancha for the deployment of digital terrestrial television in remote and less urbanised areas of Castilla-La Mancha, as amended by Decision C(2015) 7193 final of 20 October 2015 correcting certain errors contained in Decision C(2014) 6846 final.

Operative part

The Court:

1. Dismisses the action;