CELEX: C1997/142/45
Language: en
Date: 1997-05-10 00:00:00
Title: Action brought on 3 March 1997 by SIC - Sociedade Independente de Comunicação SA - against Commission of the European Communities (Case T-46/97)

10 . 5 . 97             EN I               Official Journal of the European Communities                                No C 142/21
— annul, in so far as may be necessary, the decision                   SIC's complaints concern essentially two major separate
      adopted by the Commission implicitly rejecting the               matters arising from the relationship between the
      applicant's request,                                             Portuguese State and RTP. First, the matter of granting the
                                                                       concession for the public television service to RTP and, in
                                                                       particular, the question of compensation which the State
— order the defendant to pay all the costs.
                                                                       makes annually to RTP under that concession . In that
                                                                       regard, SIC calls in question, in the first place, that certain
 Pleas in law and main arguments adduced in support:                   amounts paid by way of compensation should be
                                                                       described as remuneration for a public service; it disputes,
The pleas in law and main arguments are the same as in                 secondly, the criteria on which the calculation of said
 Case T- 16/97 ( M.                                                    compensation is based, and the amounts; and, thirdly, on
                                                                       the basis of the foregoing, it disputes the amounts of the
                                                                       compensation which the Portuguese State paid to RTP in
 (') OJ No C 74, 8 . 3 . 1997, p . 27.                                 the period from 1992 to 1996 . Secondly, SIC's complaints
                                                                       also concern other ways in which the Portuguese State has
                                                                       been financing RTP in recent years directly and indirectly,
                                                                       in particular the exemption from certain charges, the
                                                                       agreement with Portugal Telecom, the system of payment
                                                                       of certain contributions to social insurance, capital
Action brought on 3 March 1997 by SIC — Sociedade In­                  contributions and debenture loans .
dependente de Comunica?ao SA — against Commission of
                   the European Communities                            In support of its application, the applicant alleges:
                           ( Case T-46/97 )
                             ( 97/C 142/45                             — breach of the principle of the right of interested parties
                                                                           to be heard beforehand, inasmuch as they were
               (Language of the case: Portuguese)                          adopted without the applicant having been given the
                                                                           opportunity to comment on their content or on the
                                                                           main procedural documents, in particular the detailed
An action against the Commission of the European                           study commissioned by the Commission on the matter
Communities was brought before the Court of First                          and the observations and documents submitted by the
Instance of the European Communities on 3 March 1997                       Portuguese State,
by SIC — Sociedade Independente de Comunica^ao, SA,
whose registered office is at 119 Estrada da Outurela,
Carnaxide, Linda-a-Velha, representend by Carlos Botelho               — breach of the obligation to provide a statement of
Moniz and Ana Santos Reis, Advogados, with chambers at                     reasons, under Article 190 of the EC Treaty and the
63 6 ? Rua Castilho, Lisbon, with an address for service in                procedural rules relating to the preliminary stage of
Luxembourg at the chambers of Aloyse May, 31 Grand­                        assessment of complaints lodged pursuant to and for
Rue .                                                                      the purposes of Article 93 ( 2 ) of the EC Treaty,
The applicant claims that the Court should:                            — breach of Article 92 ( 1 ) of the EC Treaty, inasmuch as
                                                                           it considered to be compatible with that provision
                                                                           certain measures adopted by the Portuguese State
— annul the decision of the Commission of the European                     contrary thereto,
      Communities of 7 November 1996 SG(96 ) D/9555,
      under the heading 'State Aid NN 141 /95 — Financing
      of public television channels', notified to the applicant        — lack of a statement of reasons for the contested
      by letter No 54333 of 20 December 1996,                              decisions as a result of the failure to carry out a
                                                                           detailed and impartial inquiry into the case.
— annul the decision of the Commission of the European
      Communities, with the heading 'Plainte de SIC contre             As regards specifically the compensatory payments, it
      RTP', notified to the applicant by a letter from the             should be borne in mind, according to the applicant, that
      Commission No 54365 of 20 December 1996,
                                                                      — the Commission does not make clear the definition of
— order the defendant to pay the costs in their entirety.                  'public service' which it adopted,
Pleas in law and main arguments adduced in support:                   — the Commission does not analyze the criteria
                                                                           employed to determine the compensation paid by the
                                                                           Portuguese State to RTP in return for provision of the
The applicant, the same party as the applicant in Case
                                                                           public service,
T-231 /95 SIC v. Commission ( ] ), contests two decisions
concerning a set of measures adopted by the Government
in favour of RTP, a public operator holding the concession            — the Commission, in particular, has not replied to the
for public service television which, in that capacity,                     arguments expressly put forward by SIC in so far as
operates Portuguese television channels 1 and 2 .                          they concern failure to consider actual cost,
 ---pagebreak--- No C 142/22            EN                 Official Journal of the European Communities                                   10 . 5 . 97
— in the specific analysis of the compensation paid for              Action brought on 4 March 1997 by Onno Plug against
    each year in the period between 1992 and 1996, the                      the Commission of the European Communities
    Commission provides information which is manifestly                                     ( Case T-47/97)
    inadequate and did not lead evidence in the
    proceedings which would enable it to arrive at the                                       ( 97/C 142/46 )
    conclusions it did,
                                                                                     (Language of the case: French)
— infringement of Article 92 of the Treaty, inasmuch as              An action against the Commission of the European
    the measures complained of by the applicant do not               Communities was brought before the Court of First
    constitute State aid. As regards the granting of                 Instance of the European Communities on 4 March 1997
    compensation, the applicant considers that, even if it is        by Onno Plug, residing in Thonex ( Switzerland),
    accepted ( merely as a working hypothesis ) that                 represented by Georges Vandersanden and Laure Levi, of
    fulfilment by RTP of requirements which justify                  the   Brussels   Bar,  with    an   address  for  service    in
    payment of compensation could be characterized as                Luxembourg at the offices of Fiduciaire Myson Sari, 30,
     'public service requirements', the criteria when                Rue de Cessange .
    determining the remuneration for the provision of
    such 'public service' lead directly to the conclusion            The applicant claims that the Court should :
    that State aid within the meaning of Article 92 of the
    Treaty is involved .                                             — annul the implied decision rejecting his complaint of
                                                                         22 February 1996 and, in so far as is necessary, the
The applicant points out that the option adopted by the                  express decision rejecting his complaint, adopted on
Portuguese legislature manifestly creates objective                      27 November 1996 and notified to him on 2 December
conditions for the breach of the rules on competition.                   1996, in so far as the Commission refused to adopt
                                                                         the decision provided for by Article 19 of the Rules on
— RTP is in direct and immediate competition with SIC                    the Insurance of Officials of the European
    and with TVI ( and is also in competition with other                 Communities against the Risk of Accident and of
    major channels =— in particular European channels —                  Occupational Disease without seeking new expert
    mainly broadcast in Portugal via satellite or                        medical reports,
     distributed by cable )
                                                                     — order the Commission to pay a sum equivalent to 13
                                                                         years of his salary, on the basis that account is to be
— RTP's activity as holder of the concession for a public                taken of the amount of pay to which he would have
     service is an ancillary, marginal activity which                    been entitled on the day of delivery of the judgment
    constitutes a very small part of its programming                     and that interest will be payable on that sum at 8 %
     ( especially of its programmes in periods in which                  per annum from the date of the judgment to be given,
     significant income from advertising is generated ).
                                                                     — order the Commission to pay the entire costs .
— Almost the whole of the 'public service programme' is
     undertaken by RTP's second channel alone, since                 Pleas in law and main arguments adduced in support:
     RTP's Channel 1 is, in practice, exclusively
    commercial ( more commercial than the private                    The applicant, formerly a temporary servant of the
    channels of other European countries, according to the           European Commission, was given retirement with an
     findings of the Commission ).                                   invalidity pension with effect from 1 January 1985 . In
                                                                     1989, he brought an action against the Commission
Besides the question of compensation, the applicant                  relating to the procedure for being invalided out and the
mentions      other  State   measures  in  favour    of  RTP:        relationship between the procedures laid down in
exemptions from charges and taxes, waiver by the Social              Articles 73 and 78 of the Staff Regulations, and for
Security of a charge of Esc 1 206 600 000, late payments             damages . The Court of First Instance of the European
tolerated by Portugal Telecom ( owner of the television              Communities gave judgment on 27 February 1992 ( Case
signal distribution network ) and the conditions of the              T-165/89 Plug v. Commission [ 1992] ECR 11-367).
debenture loan for 1994 .
                                                                     On 22 February 1996, the applicant submitted a request
                                                                     under Article 90 ( 1 ) of the Staff Regulations seeking, in
In the applicant's view, it is clear that the aid granted by         particular, that the Commission take a decision on the
the State to RTP does not fall under any of the                      request for recognition of the occupational nature of his
exemptions provided for in Article 92 ( 2 ) of the Treaty.           disease, in accordance with Article 73 of the Staff
Nor can reliance be placed on Article 90 of the Treaty in            Regulations and the Insurance Rules, without seeking new
order to attempt to demonstrate that the aid of which                expert medical reports .
RTP is the recipient is lawful under Community law.
Moreover, the Commission does not rely on that provision             The applicant contends that the Commission has not
in the contested decisions .
                                                                     granted the request but has made the decision referred to
                                                                     in Article 19 of the Insurance Regulations subject to a new
(') OJ No C 77, 16 . 3 . 1996, p. 14.                                expert medical opinion. The medical reports in the
                                                                     applicant's file contain all the information that is needed
                                                                     for   the   Commission      to   take   that  decision .   The