State aid — Portugal — State aid C 85/01 — Ad hoc measures in favour of RTP — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (Text with EEA relevance)
Date: 2008-12-24
Institutions: European Commission
Subjects: Portugal, State aid, broadcasting, disclosure of information

C 329/24

EN

Official Journal of the European Union

24.12.2008

STATE AID — PORTUGAL

State aid C 85/01 — Ad hoc measures in favour of RTP

Invitation to submit comments pursuant to Article 88(2) of the EC Treaty

(Text with EEA relevance)

(2008/C 329/11)

On 26 June 2008 (1), the Court of First Instance of the European Communities partially annulled the
Commission decision of 15 October 2003 concerning ad hoc measures implemented by Portugal for RTP (2).

The Commission would like to draw the attention of interested parties to the fact that the investigation has
been re-opened and hereby invites them to submit comments on the issues mentioned in the summary
below.

Interested parties may submit their comments within one month of
announcement to:

the date of publication of

this

European Commission
Directorate-General for Competition
Directorate State Aid II
State Aid Registry
SPA3 6/5
B-1049 Brussels
Fax (32-2) 296 12 42

The comments will be communicated to Portugal. Confidential treatment of the identity of the interested
party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

PROCEDURE

According to the Court, the Commission failed to prove to the
requisite legal standard that the exemptions from notary and
registration charges did not confer on RTP a specific advantage
and that, accordingly, they did not constitute State aid.

Following a series of complaints by a commercial competitor,
on 15 November 2001 the Commission decided to initiate the
procedure laid down in Article 88(2) of the EC Treaty in respect
of a number of ad hoc measures granted by the Portuguese State
to
the
period 1992-1998 (3).

broadcaster

service

during

public

RTP

the

On 15 October 2003, the Commission adopted a final positive
decision. The Commission considered that certain measures
from which RTP benefitted during this period constituted State
aid, while others did not. The overall amount of State aid from
which RTP benefitted was considered to be compatible with the
common market within the meaning of Article 86(2) of the
EC Treaty, as it did not lead to an overcompensation of the net
costs of the public service tasks entrusted to RTP.

the Court of First

Instance (hereafter
On 26 June 2008,
‘the Court’) annulled part of
the Commission's decision of
15 October 2003. The decision was annulled on the following
two grounds:

1. State aid qualification of the exemption from notary

and registration charges

The Court considered that the Commission wrongly concluded
that the exemption from notary and registration charges in
favour of RTP did not constitute State aid.

(1) Case T-442/03.
(2) OJ L 142, 6.6.2005, p. 1.
(3) OJ C 85, 9.4.2002, p. 9.

2. Proportionality of the State aid

its
The Court considered that the Commission failed to fulfil
investigation
obligation to undertake a diligent and impartial
and to place itself in a position in which it had information
which was sufficiently reliable available to it to determine the
public services actually supplied and the cost actually incurred
in supplying them.
In the absence of such information, the
Commission was unable to proceed subsequently to a mean-
ingful verification of the proportionality of the costs of the
public service and was unable to make a valid finding that there
had been no overcompensation of the public service costs.

The Court referred in particular to the public service reports
which described how each public service obligation had been
fulfilled by RTP and which identified the costs of each public
service obligation by using an analytical accounting system. The
Court considered that these reports, which were available to the
Commission for all years included in the investigation period,
suffered from an objective weakness of which the Commission
those
was aware. That weakness consisted in the fact
reports were not systematically accompanied by an audit state-
ment as required by the concession agreement between the
Portuguese State and RTP.

that

24.12.2008

EN

Official Journal of the European Union

C 329/25

In the absence of systematic external verification of
these
reports by RTP's auditors, the Court found that there existed or
should have existed, necessarily, a doubt on the part of the
Commission as to the reliability of the information contained
therein. Those contractual external audit reports were, at least
for the years for which they were not available, liable to supply
that institution with relevant information which would confirm
— or refute — the data already at its disposal.

The Court concluded that the Commission was unable, in the
absence of proof of systematic external verification of the public
service reports by an auditor,
the information
contained in those reports to be reliable. Hence, in not requiring
the Portuguese authorities to disclose the contractual external
audit reports, the Commission failed to fulfil its obligation to
undertake a diligent and impartial investigation.

to consider

CALL FOR COMMENTS

The partial annulment has the legal consequence that
the
investigation initiated on 15 November 2001 is again open.
However, the part of the decision which was not annulled is
final and is consequently not within the scope of the now re-
opened investigation.

The purpose of the present announcement is to give interested
third parties the opportunity to submit (further) comments on
the re-opened procedure.

In particular, the Commission is interested in obtaining new
information on the actual fulfilment of the public service tasks
and on the public service costs incurred by RTP during the
period 1992-1998. Any further evidence on the exemption
from notary and registration charges granted to RTP during the
investigation period is also welcome.