Case T-329/04: Action brought on 2 August 2004 by Viasat Broadcasting UK Ltd against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), broadcasting, control of State aid, public service, quasi-fiscal charge, television

C 262/50

EN

Official Journal of the European Union

23.10.2004

Action brought on 4 August 2004 by Brandt Italia SpA
against the Commission of the European Communities

(Case T-323/04)

(2004/C 262/93)

(Language of the case: Italian)

An action was a brought before the Court of First Instance of
the European Communities on 4 August 2004 against the
Commission of the European Communities by Brandt Italia
SpA, represented by Martijn van Empel, Claudio Visco and
Salvatore Lamarca, lawyers.

The applicant claims that Court of First Instance should:

— declare void, and accordingly annul, Commission Decision

C(2004)930 final of 30 March 2004;

— in the alternative, declare the decision to be partially void,
as regards only Article 3 thereof in so far as it orders the
Italian State to recover illegally disbursed aid;

— order the Commission to pay the costs.

Pleas and main arguments adduced in support:

The
contested decision declared incompatible with the
common market State aid relating to urgent provisions in
favour of employment which was implemented by Italy by
means of Decree Law No 23 of 14 February 2003, converted
into the Law of 17 April 2003, requiring the Italian Govern-
ment to recover from the applicant the aid in question which it
is said to have received in connection with the sale of a branch
of the refrigeration business of Ocean Spa, situated in Verola-
nuova, Brescia.

In support of its claims, Brandt contests first of all the premise
of the Decision that Decree No 23/2003 conferred on the
purchasers an individual benefit, resulting in distortion of
competition.
In fact, the alleged benefits deriving from the
decree are, on the basis of the current legislation governing the
Earnings and Mobility Supplement Fund (legislation of a
general nature), generally available to any other company
which takes on workers from the lists of workers available for
transfer. Therefore, Decree 23/2003, although alleviating the
position of workers who were transferred, does not grant any
in the
economic benefit
present case. Also, the applicant claims that the Commission
failed to undertake a complete and detailed evaluation of the
economic effects of
failing to take
account of the additional costs incurred by companies which
acquire businesses, they being obliged to take on burdens and
responsibilities (both social and financial) to which — in the
absence of the measure — they would not be subject. Finally,
the applicant refers to the general nature of the measure in

to the purchasers, namely Brandt

the national measure,

question, which in fact gives rise to the same consequences as
those already provided for by the general provisions of Law No
it was because, when
223/91. According to the applicant,
the Commission classified the
examining Decree 23/2003,
measure as being similar to a general aid scheme that
it
ordered the Italian Government to recover the financial benefit
which Brandt allegedly received on an individual basis by virtue
of the decree. The Commission, by ordering repayment of an
individual aid in the context of a decision relating to an aid
scheme, infringed Article 88 EC, and also failed to comply with
the provisions of Regulation (EC) No 659/99 regarding the
adoption of provisional recovery measures.

The applicant also alleges infringement of Articles 88 and 89
EC and of Regulations Nos 994/98 and 2204/2002. In that
connection, it complains that the Commission declared to be
retrospectively illegal a measure potentially covered by the
exemption rules contained in Regulation No 2204/2002,
which was therefore classifiable as existing aid within the
meaning of Article 88 EC. Moreover, the applicant claims, the
Commission unlawfully arrogated to itself the right to deter-
mine that Decree 23/2003 was not covered by Regulation No
thereby exceeding the limits applicable to its
2204/2002,
power of
the combined provisions of
Article 89 EC and of Regulations Nos 994/98 and 2204/2002.

intervention under

The applicant also observes that Article 3 of the contested deci-
sion, which imposes on Italy an obligation to recover the
alleged State aid from the beneficiaries of the measure, breaches
the principle of the protection of legitimate expectations.

Finally, the applicant alleges failure to fulfil the obligation to
state reasons, laid down by Article 253 EC, and also misuse of
powers.

Action brought on 2 August 2004 by Viasat Broadcasting
the European
UK Ltd against

the Commission of

Communities

(Case T-329/04)

(2004/C 262/94)

(Language of the case: Danish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 August 2004 by Viasat Broad-
casting UK Ltd, West Drayton (Great Britain), represented by
Simon Evers Hjelmborg, lawyer.

23.10.2004

EN

Official Journal of the European Union

C 262/51

The applicant claims that the Court should:

— annul Article 1 of Commission Decision of 19 May 2004
in State aid Case C 2/2003 (ex NN 22/2002) concerning
Denmark's measures in favour of TV2/Danmark in so far as
the decision declares the aid to be compatible with the
common market under Article 86(2) EC;

comparison between TV2/DANMARK A/S's competitors'
costs (instead of TV2/DANMARK A/S's own costs) and
TV2/DANMARK A/S's income from commercial activities,
thereby ignoring possible differences in levels of efficiency,
with the result that the test does not show fully whether
TV2/DANMARK A/S's commercial activities through cross-
subsidation have generated an economic advantage which
distorts competition;

— order the defendant to pay the costs.

— because the price test applied by the Commission is not

applicable to the present case, either.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid
granted to TV2/DANMARK A/S from 1995 to 2002 in the
form of licence-fee resources and certain other measures as
compatible with the common market, except for an amount of
DKK 628.2 million which, in the Commission's view, consti-
tutes unlawful State aid which the Kingdom of Denmark is
obliged to recover from TV2/DANMARK A/S. The applicant
has applied for annulment of that part of the decision by
which the Commission declares part of the aid to be compa-
tible with the common market.

The applicant submits that the Commission's assessment is
incorrect in the re-examination of the question of whether
TV2/DANMARK A/S's public service obligations are defined in
sufficient detail, since it has found that all of TV2/DANMARK
A/S's programme range forms part of its public service obliga-
tions. It is precisely this aspect which makes it difficult to re-
examine whether the Danish State has complied and continues
to comply with the Community competition rules, in particular
Article 87(1) EC, together with Article 86(2) EC.

The applicant adds that the Commission's method for assessing
whether the aid found to exist within the meaning of Article
87(1) EC pursuant to Article 86(1) EC is compatible with the
common market is incorrect because the method does not take
account of the presence of indirect (horizontal) State aid (cross-
subsidisation), contrary to Article 87(1) EC:

— because the anti-competitive conduct by TV2/DANMARK
A/S in the market for sales of television advertising cannot
be necessary for the performance of TV2/DANMARK A/S's
public service obligations pursuant
to Article 86(2) EC,
with the result that Article 87(1) EC applies absolutely in
relation to TV2/DANMARK A/S's conduct in commercial
markets;

— because the Commission assessed only whether possible
excess compensation from the State (the direct vertical and
prohibited State aid) had been provided to assist
the
commercial activities, and not whether the compensation
from the State (the direct vertical and permitted State aid)
had been provided in order to obtain an economic advan-
tage in the commercial activities which distorted competi-
tion;

— because the 'stand alone' test applied by the Commission is
not applicable to the present case, because it is based on a

Action brought on 13 August 2004 by TV Danmark A/S
and Kanal 5 Denmark Ltd., against the Commission of the
European Communities

(Case T-336/04)

(2004/C 262/95)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 13 August 2004 by TV Danmark
A/S, Copenhagen, Denmark and Kanal 5 Denmark Ltd., Houn-
slow, United Kingdom represented by Mr D. Vandermeersch,
Mr K. Karl and Mr H. Peytz, lawyers with an address for service
in Luxembourg.

The applicant claims that the Court should:

— annul Article 1 of Decision C 2/03 Commission of 19 May
2004 on State financing of Danish public broadcaster TV2/
Danmark by means of licence fee and other measures, in so
far as the Commission found that aid granted to TV2/
Danmark between 1995 and 2002 in the form of licence
fee resources and other measures identified in the decision
is compatible with the common market under Article 86(2)
EC;

— order the Commission to pay the applicant's legal

fees,
costs and other expenses incurred in connection with this
application.

Pleas in law and main arguments:

In the contested decision, the Commission held that, between
1995 and 2002,
the Danish public broadcaster TV2/
DANMARK benefited from State aid within the meaning of
Article 87(1) EC. The Commission concluded that the aid is
compatible with the common market under Article 86(2) EC,
except for an overcompensation amounting to 628.2 million
DKK which should be repaid by TV 2 / DANMARK A/S.