Judgment of the General Court (Third Chamber) of 10 July 2012 — TF1 and Others v Commission

(Case T-520/09)

‛State aid — Public service broadcasting — Aid intended to be granted by the French Republic to France Télévisions — Budgetary grant for 2009 — Decision not to raise objections — Service of general economic interest — Criterion of proportionality — No serious difficulties’

1. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Decisions which the Commission may adopt at the conclusion of the preliminary review — Right of the persons concerned to be heard where the formal investigation procedure opened (Art. 88(2) and (3) EC; Council Regulation No 659/1999, Arts 6(1), and 20) (see paras 38-46)

2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Commission decision finding aid compatible with the common market without opening the formal investigation procedure — Action brought by the parties concerned within the meaning of Article 88(2) EC — Action designed to safeguard the procedural rights of the persons concerned — Pleas capable of being invoked — Burden of proof — Judicial review (Art. 88(2) EC; Council Regulation No 659/1999, Art. 1(h)) (see paras 47-50, 152, 212, 213)

3. State aid — Planned aid — Examination by the Commission — Preliminary phase — Duration — Mandatory nature of the two-month time limit established to ensure legal certainty for the notifying Member State — Calculation of the duration of the preliminary examination as from receipt of full notification — Concept of full notification (Art. 88(2) and (3) EC; Council Regulation No 659/1999, Arts 2(2), and 4(1) and 5) (see paras 56-58, 60-63)

4. State aid — Planned aid — Examination by the Commission — Preliminary phase — Duration — Mandatory nature of the two-month time limit established to ensure legal certainty for the notifying Member State — Consequences where that time limit exceeded — Significant exceeding of the time limit capable of constituting an indication of the existence of serious difficulties requiring the main procedure to be opened — Assessment on a case-by-case basis (Art. 88(2) and (3) EC; Council Regulation No 659/1999, Art. 4(6) EC) (see paras 64-68)

5. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Obligation of the Commission to open the main procedure where there are serious difficulties — Request for additional information not in itself revealing the existence of serious difficulties (Art. 88(2) and (3) EC) (see paras 76, 77)

6. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Obligation of the Commission to open the main procedure where there are serious difficulties — Extension of the preliminary phase due to the incomplete nature of the notification not implying, having regard to sincere cooperation of the Member State, the existence of serious difficulties (Art. 88(2) and (3) EC) (see paras 82, 86)

7. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Obligation of the Commission to open the main procedure where there are serious difficulties — Size of the investment or aid — Irrelevance (Art. 88(2) and (3) EC) (see para. 88)

8. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Interpretation of the derogation under Article 86(2) EC in the light of Article 16 EC and the protocol on public broadcasting — Assessment of the proportionality of the aid to prevent net costs being exceeded (Arts 16 EC and 86(2) EC; protocol on the system of public broadcasting in the Member States, introduced by the Amsterdam Treaty annexed to the EC Treaty; Commission Notice 2001/C 320/04) (see paras 92-96, 101-103, 139, 170)

9. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Freedom of Member States to choose the method of financing the public service — Limit (Art. 86(2) EC; protocol on the system of public broadcasting in the Member States, introduced by the Amsterdam Treaty annexed to the EC Treaty) (see paras 117, 118)

10. State aid — Commission decision — Assessment of legality by reference to the information available at the time of adoption of the decision (Art. 87(1) EC) (see paras 135, 163)

11. Procedure — Introduction of new pleas during the proceedings — Conditions — New plea — Concept (Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2)) (see paras 185, 208, 215)

Re:

APPLICATION for annulment of the Commission’s decision of 1 September 2009 concerning a budgetary grant in favour of France Télévisions in so far as the Commission raises no objections in that decision regarding a budgetary grant of a maximum amount of EUR 450 million for 2009.

Operative part

The Court:

1. Dismisses the action as unfounded;

2. Orders Télévision française 1 (TF1), Métropole télévision (M6) and Canal + to bear their own costs and to pay those incurred by the European Commission and France Télévisions;