Judgment of the General Court (Fifth Chamber) of 26 November 2015 —

Abertis Telecom and Retevisión I v Commission

(Case T‑541/13)

‛State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less-urbanised areas in Spain — Decision declaring aid to be partly compatible and partly incompatible with the internal market — Advantage — Service of general economic interest — Article 107(3)(c) TFEU — New aid — Obligation to state reasons’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Decision of the Commission finding aid incompatible with the internal market — Action by the aid recipient — Admissibility (Art. 263, fourth para., TFEU) (see paras 40-43)

2. Actions for annulment — Admissibility criteria — Bringing of a single action by two applicants — Admissibility of the action of one of the applicants — No need to examine the admissibility of the action in relation to the second applicant (Art. 263 TFEU) (see para. 44)

3. State aid — Examination by the Commission — Consecutive State interventions inseparably linked to each other — Assessment of the measures taken in their entirety — Lawfulness (Arts 107(3) TFEU and 108 TFEU) (see paras 53, 54)

4. State aid — Examination by the Commission — Examination of an aid scheme as a whole — Lawfulness (Arts 107(3) TFEU and 108 TFEU) (see para. 54)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Ground put forward by the latter during the proceedings not mentioned in the contested decision — Inadmissibility (Arts 107 TFEU and 296 TFEU) (see para. 61)

6. Actions for annulment — Subject-matter — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Decision on State aid — Annulment of such a decision — Conditions (Art. 263 TFEU) (see paras 64, 112)

7. 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 (Arts 14 TFEU and 107(1) TFEU; Protocol No 26 annexed to the EU and FEU Treaties) (see paras 71, 78-81, 83-86, 88, 91-93)

8. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Determination of general economic interest — Distinction between the provision of a broadcasting service and the operation of broadcasting networks — Lawfulness (Art. 107(1) TFEU) (see paras 97-101)

9. State aid — Commission decision — Judicial review — Free assessment of the facts and evidence (see para. 102)

10. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Definition of a networks operating service as a service of general economic interest — Condition — Compliance with the principle of technological neutrality (Arts 107(1) TFEU and 108 TFEU) (see paras 105, 106, 110)

11. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for claims invoked in support of a plea (Rules of Procedure of the General Court (1991), Art. 44(1)(c)) (see para. 116)

12. State aid — Prohibition — Exceptions — Discretion of the Commission — Judicial review — Limits (Art. 107(3) TFEU) (see paras 122, 123, 131)

13. State aid — Examination by the Commission — Communication of the switchover to digital — Legal nature — Indicative rules of conduct implying a self-limitation on the Commission’s discretion (Arts 107(3) TFEU and 108 TFEU; Commission Notice COM(2003) 541 final) (see para. 126)

14. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Assessment having regard to Article 107(3)(c) TFEU — Taking into account previous practice — Exclusion (Art. 107(3)(c) TFEU) (see paras 127, 139)

15. State aid — Prohibition — Exceptions — Account taken of the situation existing at the time the measure adopted (Art. 107(3) TFEU) (see paras 135, 136, 138, 140)

16. State aid — Administrative procedure — Compatibility of aid with the internal market — Burden of proof on the provider and the potential recipient of the aid (Art. 4(3) TEU; Art. 107(3) TFEU) (see para. 143)

17. State aid — Existing aid and new aid — Measure amending an existing aid scheme — Classification of the scheme as new aid (Art. 108(1) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1)) (see paras 155-159)

Re:

APPLICATION for annulment of Commission Decision 2014/489/EU of 19 June 2013 on State aid SA.28599 [(C 23/2010) (ex NN 36/010, ex CP 163/2009)] implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less-urbanised areas (other than Castilla-La Mancha) (OJ 2014 L 217, p. 52).

Operative part

The Court:

1. Dismisses the action;