EN Official Journal of the European Union C 261/21

Action brought on 30 August 2006 — Kingdom of the Netherlands v Commission

(Case T-231/06)

(2006/C 261/41)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G. Sevenster and D.J.M. de Grave, Agents)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C(2006) final of 22 June 2006 concerning the ad hoc measures implemented by the Netherlands for the purpose of financing public broadcasters in the Netherlands in relation to the State aid case No C 2/2004 (ex NN 170/2003), with the exception of Article 1(3) thereof;

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant first alleges a breach of Article 88(2) EC and of the rights of the defence by reason of the fact that, in its decision, the Commission has substantially departed from the decision of 3 February 2004 (1) by which it initiated the formal investigation. The applicant goes on to submit that the subject-matter of the investigation and the method of calculation for determining the excess compensation have been altered.

Secondly, the applicant claims that there has been a breach of Article 88(1), (2) and (3) EC, of Article 1(b) of Regulation No 659/1999 (2) and Article 253 EC on the ground that the Commission incorrectly construed and applied the concepts of new aid and existing aid.

The applicant submits that the Commission erred in classifying payments from specific funds and reserves as new aid. By so doing, it argues, the Commission failed to take account of the fact that such payments, in the same way as ordinary payments to public broadcasters, constitute part of media budget and do not amount to additional public funds. The applicant argues that the only difference, namely that these payments are made available for specific purposes, does not amount to a reason for distinguishing these payments from the rest of public financing.

The applicant goes on to submit that the Commission incorrectly applies the notion of existing aid by classifying as new aid to the NOS the repayment of part of the reserves of the separate public regional broadcasters to a coordinating body, the NOS. According to the applicant, the reserves in question arose from the annual financing, which constitutes existing aid, and did not lose their character as existing aid simply by reason of the transfer to the NOS.

By way of alternative submission, the applicant alleges a breach of Article 86(2) EC, a manifest misappraisal of the facts, and a breach of Article 253 EC by reason of the manner in which the Commission calculated the overcompensation of the public broadcasters.

According to the applicant, the Commission was wrong to decide that the financing failed to comply with the principle of proportionality. The applicant states that the Commission had initially established that the financing did not lead to distortions of competition on commercial markets. There can for that reason be no question, the applicant submits, of overcompensation and no reimbursement is therefore necessary.

The Commission also fixed the amount to be claimed back from the NOS's Broadcasting Reserve Fund. According to the applicant, however, the Commission thereby based itself on the presumption that this amount was still retained by the NOS as a reserve, whereas in fact it had already been spent to a large degree, in accordance with the applicable conditions.

The Commission also established that the amount in reserves which the separate broadcasters had transferred to the NOS had to be recovered in full. The applicant submits that, in so doing, the Commission, without giving reasons, departed from its established conduct of allowing overcompensation of up to 10 %.

(1) OJ 2004 C 61, p. 8.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, p. 1).