DTS Distribuidora de Televisión Digital, SA v European Commission.
Date: 2016-11-10
27


Secondly, it should be noted that, according to the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, an appeal must, on penalty of being deemed inadmissible, indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, inter alia, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29 and the case-law cited).
28


Moreover, it follows from those same provisions that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (see judgment of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 26 and the case-law cited).
29


By contrast, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see judgment of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 27 and the case-law cited).
43


It should be noted that the Court of Justice has consistently held that where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review the legal characterisation of those facts and the conclusions in law drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia, judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 78).
44


Thus, with respect to the assessment, in the context of an appeal, of the General Court’s determinations on national law, the Court of Justice has jurisdiction only to determine whether that law was distorted (see judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 79 and the case-law cited).
45


In that regard, it should be noted that distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 80).
65


It is settled case-law of the Court that taxes do not fall within the scope of the provisions of the Treaty relating to State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure (judgments of 13 January 2005, Streekgewest, C‑174/02, EU:C:2005:10, paragraph 25; of 13 January 2005 in Pape, C‑175/02, EU:C:2005:11, paragraph 14; and of 27 October 2005, Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraph 34).
66


Firstly, an aid, in the strict sense, may not substantially affect trade between Member States and thus be deemed admissible, but could have its disruptive effect exacerbated by a method of financing that would make the whole incompatible with the internal market. Furthermore, where a tax specifically intended to finance aid proves to be contrary to other provisions of the Treaty, the Commission cannot declare the aid scheme of which the charge forms part to be compatible with the internal market (see, to that effect, judgment of 21 October 2003, van Calster and Others, C‑261/01 and C‑262/01, EU:C:2003:571, paragraphs 47 and 48 and the case-law cited).
67


The method by which aid is financed may render the entire aid scheme it is intended to fund incompatible with the internal market. As a result, the aid cannot be considered separately from its method of financing (see, to that effect, judgment of 14 April 2005, AEM and AEM Torino, C‑128/03 and C‑129/03, EU:C:2005:224, paragraph 45).
68


According to settled case-law, in order for a tax to be regarded as forming an integral part of an aid measure, it must be hypothecated to the aid under the relevant national rules, in the sense that the revenue from the tax is necessarily allocated to the financing of the aid and has a direct impact on the amount of the aid and, consequently, on the assessment of the compatibility of that aid with the internal market (see, inter alia, judgments of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 46 and the case-law cited, and of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 99).
70


In particular, as is apparent from paragraphs 47 and 48 of the present judgment, the General Court noted, in that regard, that when the tax revenues available to RTVE exceed the costs of fulfilling the latter’s public service mandate, the excess must be reassigned, as appropriate, to a reserve fund or the treasury, since those revenues, in addition, are subject to an absolute limit, with the result that any surplus is also reassigned to the State’s general budget. Moreover, the General Court found that, where those revenues are insufficient to cover these costs, the Spanish State is required to make up the difference.
71


In those circumstances, although it is common ground that the financing of the aid granted to RTVE is ensured by the fiscal measures at issue, the General Court, contrary to what DTS and the Telefónica companies submit, was nevertheless entitled to conclude, without committing an error of law, in paragraph 104 of the judgment under appeal, that those fiscal measures do not form part of the aid.
72


Since the revenue from the fiscal measures at issue has no direct impact on the amount of the aid granted to RTVE, given that neither the grant or the amount of the aid are based on that revenue and that the revenue from that aid is not used to finance it, in that part of the revenue may be reallocated to other purposes, it cannot be held that those tax measures are hypothecated to the aid in question.
73


It is irrelevant, in that regard, that the fiscal measures at issue were introduced in order to offset the loss of the commercial revenues formerly enjoyed by RTVE, in particular those derived from advertising (see, by analogy, judgment of 13 January 2005, Streekgewest, C‑174/02, EU:C:2005:10, paragraph 27).
81


On the one hand, as the Court has already held, the question whether a tax is an integral part of an aid financed by a tax depends not on the existence of a competitive relationship between the person liable to pay the tax and the beneficiary of the aid, but only on whether that tax is hypothecated to the aid in question under the relevant national legislation (see, to that effect, judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraphs 93 to 99).
82


Thus, according to the case-law of the Court, a tax cannot be hypothecated to an exemption from payment of that same tax for a category of undertakings, and thus even where those undertakings operate in competition with undertakings liable to pay the tax in question. The application of a tax exemption and its extent do not depend on the tax revenue. Thus, those liable to pay a charge cannot rely on the argument that the exemption enjoyed by other undertakings constitutes State aid in order to avoid payment of that charge or to obtain reimbursement thereof (see, to that effect, inter alia, judgment of 27 October 2005, Distribution Casino France and Others, C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04, EU:C:2005:657, paragraphs 41 and 42).
99


Under Article 174 of the Rules of Procedure, a response shall seek to have the appeal allowed or dismissed, in whole or in part.
100


Furthermore, in accordance with Article 172 of those rules, a party to the relevant case before the General Court may submit, by document separate from the response, a cross-appeal which, according to Article 178(1) and (3), second sentence, of the Rules of Procedure, must seek to have set aside, in whole or in part, the judgment under appeal on the basis of pleas in law and arguments separate from those relied on in the response.
101


It is apparent from those provisions, read together, that the reply may not seek the annulment of the judgment under appeal on the basis of distinct and independent grounds from those raised in the appeal, since such grounds may only be raised as part of a cross-appeal.
114


With respect to whether the cross-appeal is well founded, it should be recalled that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgment of 7 October 2014, Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 27).
119


Infringement proceedings are based on the objective finding that a Member State has failed to fulfil its obligations under EU law (see, in particular, judgment of 6 October 2009, Commission v Spain, C‑562/07, EU:C:2009:614, paragraph 18).
121


Moreover, although, under Article 132(2)(b) of the Rules of Procedure, the statement in intervention is to contain the pleas in law and arguments relied on by the intervener, that does not mean that the intervener is free to rely on new pleas in law, distinct from those relied on by the applicant. As noted by the Advocate General in point 219 of his Opinion, that provision falls within the context of the limits established by the intervention procedure and must be read in the light of Article 129 of that regulation, which states that the intervention is to be limited to supporting, in whole or in part, the form of order sought by one of the parties, that it is ancillary to the main proceedings and that the intervener must accept the case as he finds it at the time of his intervention.