Case T-237/06: Action brought on 4 September 2006 — Nederlandse Omroep Stichting v Commission of the European Communities
Date: 2006-09-04
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), broadcasting, control of State aid, financing, public sector

2.12.2006

EN

Official Journal of the European Union

C 294/51

With regard to the claim for compensation,
the applicant
considers that the European Parliament exceeded a reasonable
period in responding to her requests for clarification and for a
review of her situation and, furthermore, that such conduct is
inconsistent with the requirements of the European Code of
good administrative conduct. The applicant seeks an order that
the defendant pay the token sum of one euro as compensation
for the non-material damage thus caused. The applicant also
seeks default interest on the sums due to her under the 2002,
2004 and 2005 rules on SNEs.

Secondly, the applicant alleges breach of Articles 87 and 88 EC
as result of the Commission's incorrect interpretation and appli-
cation of the judgment in Altmark (2). According to the appli-
cant, the Commission found, wrongly and on the basis of an
unfair criterion, that the ad hoc financing should be regarded
as State aid. The applicant submits that the criteria developed
in Altmark by the Court of Justice cannot be applied in the
present situation.
the Amsterdam Protocol on the
financing of public broadcasting (3) should be the point of
departure.

Instead,

Thirdly, the applicant alleges breach of Articles 87 and 88 EC,
Article 253 EC and Regulation No 659/1999 as result of the
lack of connection between the provision of the ad hoc finan-
cing and the overcompensation found by the Commission.
According to the applicant, the overcompensation connected
with the creation of reserves in the case of the broadcasting
institutions is not sufficiently attributable to the allocation of
the funds which the Commission refers to as ad hoc financing.

Fourthly, the applicant alleges breach of Articles 87 and 88 EC
as result of the fact that the Commission wrongly regards copy-
right royalties as State aid. Moreover, the ad hoc financing is
not
favouring the applicant as an undertaking within the
meaning of Article 87(1) EC and the public financing awarded
does not
lead to a distortion of competition within the
meaning of Article 87(1) EC.

Fifthly, the applicant alleges breach of Article 86(2) EC owing
to a lack of proportionality. Also when viewed in the light of
the Amsterdam Protocol on the financing of public broad-
casting, the Commission wrongly failed, after finding that there
was no distortion of competition, to balance the lack of nega-
tive effects of overcompensation against the interest of the
performance of a public task and the Community's interest in
general. The applicant submits that the Commission should
have also taken into account the limited nature of the Dutch
language area and the fact that the reserves that had arisen
would have led to expenditure in the foreseeable future and
would thus have disappeared.

Finally, the applicant alleges breach of the rules of procedure in
Article 88(2) EC and the rights of the defence as result of the
fact that the Commission extended the scope of the investiga-
tion in various respects.

(1) 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 1999 L 83, p. 1).

(2) Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magde-
burg v Nahverkehrsgesellschaft Altmark GmbH [2003] ECR I-7747.
(3) Protocol annexed to the Treaty establishing the European Com-
munity concerning the system of public broadcasting in the
Member States.

Action brought on 4 September 2006 — Nederlandse
Omroep Stichting v Commission of the European Commu-
nities

(Case T-237/06)

(2006/C 294/106)

Language of the case: Dutch

Parties

Applicant: Nederlandse Omroep Stichting (represented by: J.J.
Feenstra and H.M.H. Speyart, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's decision, in particular Article 1(1)
and (2) and Articles 2 and 3 and the recitals on which they
are based;

— order the Commission to pay the costs

Pleas in law and main arguments

By its application the Nederlandse Omroep Stichting (NOS)
seeks the annulment of the Commission's decision of 22 June
2006 on ad hoc financing of the Dutch public broadcasters
(State aid C 2/2004 [ex NN 170/2003]).

In support of its application the applicant alleges, first, breach
of Article 88(1),
(2) and (3) EC and of Regulation No
659/1999 (1). It submits that the Commission has incorrectly
interpreted and applied the distinction between new and
existing aid. The ad hoc aid which is the subject of
the
contested decision was merely a part of the total system of
public financing of Dutch public broadcasters. The general
system has been recognised by the Commission as existing aid.
The cash flows, which the Commission refers to as ad hoc
financing, are provided on the same lines and should, according
to the applicant, therefore be regarded as existing aid.