Viasat Broadcasting UK Ltd v European Commission.
Date: 2017-03-08
13


However, the Statute and those Rules make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
14


In that regard, it follows from the second paragraph of Article 252 TFEU that it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions examined in that Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see judgment of 21 December 2016, Council v Front Polisario, C‑104/16 P, EU:C:2016:973, paragraphs 60 and 61 and the case-law cited).
22


In this connection it must be recalled that, for a national measure to be categorised as State aid within the meaning of Article 107(1) TFEU, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient and, fourth, it must distort or threaten to distort competition (see, to that effect, judgment of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 39 and the case-law cited).
24


So far as concerns the third criterion for characterising a measure as State aid, it is settled case-law that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment of 30 June 2016, Belgium v Commission, C‑270/15 P, EU:C:2016:489, paragraph 34).
25


However, the Court has stated that, where a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 107(1) TFEU (see judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87).
29


As is provided by case-law, the wording of Article 106(2) TFEU itself shows that exemptions to the Treaty rules are permitted provided that they are necessary for performance of the particular tasks assigned to an undertaking entrusted with the operation of a service of general economic interest (see, to that effect, judgments of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 54 and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 106).
30


In that regard, it is clear from the Court’s case-law that it is not necessary that the financial balance or economic viability of the undertaking entrusted with the operation of a service of general economic interest should be threatened. It is sufficient that, in the absence of the rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, or that maintenance of those rights is necessary to enable the holder of them to perform tasks of general economic interest which have been assigned to it under economically acceptable conditions (judgment of 15 November 2007, International Mail Spain, C‑162/06, EU:C:2007:681, paragraph 35 and the case-law cited).
31


In allowing derogations to be made from the general rules of the Treaty in certain circumstances, Article 106(2) TFEU seeks to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of economic or fiscal policy with the Union’s interest in ensuring compliance with the rules on competition and the preservation of the unity of the common market (see, to that effect, judgment of 23 October 1997, Commission v France, C‑159/94, EU:C:1997:501, paragraph 55).
33


It must be pointed out in this connection that in order to assess a measure under Article 106(2) TFEU, the Commission is not required, contrary to what is claimed by the appellant, to examine whether the conditions laid down by the case-law in Altmark, in particular the second and fourth of those conditions, are met.
34


As the General Court indeed held in paragraph 63 of the judgment under appeal, verification of the conditions laid down in the Altmark case-law occurs upstream, that is to say in the examination of the issue of whether the measures at issue must be characterised as State aid. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU.
35


By contrast, the conditions laid down in the Altmark case-law are no longer to be applied where the Commission, having found that a measure must be characterised as aid, in particular in so far as the recipient undertaking is unable to pass the test of comparison with a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public-service requirements, examines whether that aid can be justified under Article 106(2) TFEU.
36


That latter provision, which is supplemented by the Protocol (No. 26) on Services of General Interest (OJ 2010 C 83, p. 308) and, as regards the field at issue in the present case, by the Protocol (No. 29) on the System of Public Broadcasting in the Member States (OJ 2010 C 83, p. 312), cannot be interpreted in isolation having regard merely to its wording without also taking into account the additional information in those protocols.
43


It is settled case-law that the statement of reasons required under Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case-law cited).