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

Navarra de Servicios y Tecnologias v Commission

(Case T‑487/13)

‛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 — State resources — Economic activity — Advantage — Effect on trade between Member States and distortion of competition — Service of general economic interest — Article 107(3)(c) TFEU — Misuse of power’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Commission decision finding aid incompatible with the internal market — Action by the aid recipient — Admissibility (Art. 263, fourth para., TFEU) (see paras 35-38)

2. State aid — Concept — Aid from State resources — Concept of State resources (Art. 107(1) TFEU) (see paras 44, 45)

3. Competition — Union rules — Addressees — Companies — 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 49-61)

4. 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 65, 66, 70)

5. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment (Art. 107(1) TFEU) (see paras 78-81)

6. State aid — Prohibition — Exceptions — Account taken of the situation existing at the time the measure adopted (Art. 107(3) TFEU) (see para. 87)

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 — Weakening of the market — Fact not sufficient for a finding that a service of general economic interest exists (Arts 14 TFEU and 107(1) TFEU; Protocol No 26 annexed to the EU and FEU Treaties) (see paras 89, 97-99, 102, 104, 105, 117)

8. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Determination of services of general economic interest — Distinction between the provision of a broadcasting service and the operation of broadcasting networks — Lawfulness (Art. 107(1) TFEU; Protocol No 29 annexed to the EU and FEU Treaties) (see paras 107, 108, 110, 111)

9. State aid — Prohibition — Exceptions — Discretion of the Commission — Judicial review — Limits (Art. 107(3) TFEU) (see para. 134)

10. 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. 136)

11. Actions for annulment — Grounds — Misuse of powers — Concept (Art. 263 TFEU) (see paras 142, 144, 145)

12. State aid — Recovery of unlawful aid — Restoration of the prior situation — No breach of principle of proportionality (Art. 108 TFEU) (see para. 144)

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;