Case C-657/15 P: Appeal brought on 7 December 2015 by Viasat Broadcasting UK Ltd against the judgment of the General Court (Eighth Chamber) delivered on 24 September 2015 in Case T-674/11 TV2/Danmark v European Commission
Date: 2015-12-07
Institutions: Court of Justice
Subjects: Denmark, State aid, advertising, broadcasting, control of State aid, public sector, services of general interest, television








C_2016059EN.01000801.xml










15.2.2016   


EN


Official Journal of the European Union


C 59/8





Appeal brought on 7 December 2015 by Viasat Broadcasting UK Ltd against the judgment of the General Court (Eighth Chamber) delivered on 24 September 2015 in Case T-674/11 TV2/Danmark v European Commission
(Case C-657/15 P)
(2016/C 059/07)
Language of the case: Danish

Parties


Appellant: Viasat Broadcasting UK Ltd (represented by: M. Honoré and S. Kalsmose-Hjelmborg, advokater)

Other parties to the proceedings: TV2 Danmark A/S, European Commission, Kingdom of Danmark

Forms of order sought







—


Set aside point 1 of the operative part of the General Court’s judgment of 24 September 2015 in Case T-674/11 TV2/Danmark v Commission (claim 1); and










—


Set aside that part of the General Court’s judgment of 24 September 2015 in Case T-674/11 TV2/Danmark v Commission by which the General Court upholds the third part of the applicant’s first plea in law (claim 2); and










—


Find in favour of the Commission with regard to the action for annulment brought by TV2 and the Kingdom of Denmark; and










—


Order TV2/Danmark and the Kingdom of Denmark, applicants at first instance, to pay Viasat’s costs.





Pleas in law and main arguments

In relation to the first form of order sought, Viasat submits that the General Court found, incorrectly, that the Commission had erred in finding that advertising revenues charged by TV2 Reklame A/S in 1995 and 1995 constituted State aid.
Viasat further submits that the advertising revenues from 1995 and 1996 entailed a transfer of State resources, as the advertising revenues went through the company TV2 Reklame A/S and the TV2 Fund, which were both under State control. Furthermore, the actual use of the resources was decided on by the Minister for Culture (Kulturministeren) and the Parliamentary Finance Committee (Folketingets Finansudvalg). The General Court was also incorrect in holding that TV2 had a legal right to the resources in the TV2 Fund or portions thereof.
In relation to the second plea in law, Viasat submits that the General Court erred in upholding the applicant’s submission that the second Altmark condition was met in the case (paragraphs 88-111). Viasat observes that, in its judgment, the General Court considers solely the interpretation of the contested decision which the Commission, in the General Court’s view, ought to have submitted in its written pleadings before the General Court, without examining the statement of reasons in the contested decision. There is nothing in paragraphs 114 to 116 of the contested decision showing that the second Altmark condition would include a requirement of efficiency on the part of the recipient of the compensation.
The General Court thus ought to have ruled on whether the Commission could rightly require, in connection with the second Altmark condition, that there must not only be foreseeability with regards to TV2’s future advertising revenues (that is to say, income), but also the costs in connection with the calculation of the compensation.
Viasat submits that the Commission’s requirement of a sufficient degree of transparency in relation to costs is a logical and necessary consequence of the broad freedom a public service provider has in the radio and television sectors: see inter alia paragraph 214 in the judgment in BUPA v Commission, T-289/03, EU:T:2008:29.
The need for transparency surrounding costs is also relevant in relation to the other Altmark criteria: see judgment of the General Court in Viasat v Commission, T-125/12, EU:T:2015:687 paragraphs 80-83.