Case T-338/04: Action brought on 11 August 2004 by Centro Europa 7 srl against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), broadcasting, complaint to the Commission, restriction on competition, television

C 262/52

EN

Official Journal of the European Union

23.10.2004

The applicants request the annulment of Article 1 of the deci-
sion to the extent that it held that a part of the aid is compa-
tible with the common market. The applicants submit that in
the Commission has
the decision,
adopting that part of
infringed Article 86(2), 87 and 88 EC, as well as the Protocol
annexed to the EC Treaty on the system of public broadcasting
in the Member States.

The applicants allege that the Commission infringed Articles 87
and 88 EC, when, after having found that the aid was new aid,
it nevertheless proceeded to hold that the aid (with the excep-
tion of the amount found in overcompensation) was compa-
tible with the common market while it should have established
the illegality of the entire aid due to lack of notification.

that

submit

the applicants

Furthermore,
the Commission
infringed Articles 86(2), 87 and 88 EC and the Protocol, when
it held that all of TV2's costs relate to public service obligations
and could therefore be funded by the State in spite of the lack
of a sufficiently precise definition of the public service obliga-
tions of TV2. The Commission also infringed the said articles
when it approved the State aid on the basis of the test of
whether TV2 attempted ‘to maximise revenues’ and put the
burden of proof on the applicants. It committed a manifest
error of assessment when it disregarded the evidence of TV2
undercutting prices of a stand alone efficient operator.

The applicants also allege that
the Commission infringed
Article 86(2) EC and the Protocol when it approved the aid
notwithstanding its own finding of doubt as to the pricing
behaviour of TV2 and the price level in Denmark. Furthermore,
the Commission infringed Article 86(2) EC when it failed to
examine whether the net costs of TV2 were proportionate to
the public service obligations and when accepting the absence
of any, or in the alternative, sufficient Danish public control
over TV2's performance of its public service remit.

Action brought on 11 August 2004 by Centro Europa 7 srl
against the Commission of the European Communities

(Case T-338/04)

(2004/C 262/96)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 11 August 2004 by Centro Europa
7 srl, represented by Vittorio Ripa di Meana and Roberto
Mastroianni, lawyers.

The applicant claims that the Court should:

— annul the decision not to take any further action on the
complaint lodged by the applicant on 18 October 2001,

notified to the applicant by letter by the Director of DG
Competition, Mr Menshing, on 4 June 2004, sent by fax on
9 June 2004, No D (2004)/471;

— order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant in the present case participated in July 1999 in
the tender procedure organised in Italy for the granting of
private terrestrial analogue television broadcasting licences,
obtaining the award of a six-year contract for unencrypted
transmission, renewable for a further six years. However, the
applicant has still not been able to transmit in the clear because
the
it has still not been allocated the frequencies under
contract. Implementation of the national frequency plan, which
would have fulfilled its legitimate expectations, has not been
carried out because, in accordance with the Italian legislation in
the frequencies are taken up by television operators
force,
which have not obtained a licence and have been able to
continue operating under the ‘transitional arrangements’ intro-
duced by Law No 249 of 1997. Accordingly, the fact that the
third network of the group Mediaset (Retequattro) continues to
carry on business has made it impossible to free up the neces-
sary frequencies in order to allow the applicant to commence
transmission as it should after obtaining the broadcasting
licence.

This action has been brought against the decision not to take
action against the complaint regarding distortion of competi-
tion as a result of the abovementioned situation and of the
request to the Commission asking it to take action, pursuant to
Article 86(3) of the EC Treaty, regarding measures favouring
the undertaking RTI on which Italian law has conferred special
rights.

In support of its claims, the applicant alleges infringement of
Articles 82 and 86 of the Treaty and breach of the obligation
to provide reasons inasmuch as the defendant:

— should have examined the complaint in question for not
having replied to the principal complaint regarding the
discrimination suffered in respect of access to the television
broadcasting market.

— adopted the act in question without taking into considera-
tion the fact that the measures which the Italian authorities
adopted or failed to adopt, by excluding Europa 7 from the
market in television broadcasting, strengthened RTI's domi-
nant position.

— failed to take into consideration the consequences of the
entry into force of Law No 11 of 2004 on the applicant's
position.
the applicant also alleges
breach of the general principle of sound administration, as
enshrined in Article 47 of
the Charter of Fundamental
Rights.

In that connection,