Language of document : ECLI:EU:C:2018:777

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 26 September 2018 (1)

Case C492/17

Südwestrundfunk

v

Tilo Rittinger,

Patric Wolter,

Harald Zastera,

Dagmar Fahner,

Layla Sofan,

Marc Schulte

(Request for a preliminary ruling from the Landgericht Tübingen (Regional Court, Tübingen, Germany))

(Reference for a preliminary ruling — State aid — Legislation of a Member State which requires all adults in possession of a dwelling in national territory to pay a contribution to public service broadcasters)






1.        Public service broadcasting in Germany is subject to the constitutional requirement, laid down in Article 5 of the Grundgesetz (Basic Law), that the media are to enjoy freedom of artistic and scientific opinion. The Bundesverfassungsgericht (Federal Constitutional Court, Germany) has interpreted that provision as laying down an obligation to provide that service impartially and in such a way as to ensure the diversity, objectivity and balance of programme content. (2)

2.        Given that the power to legislate in matters of public service broadcasting lies with the federal states (Länder), the formation and management of public service broadcasters and the provision of their services at federal level have been governed by a series of interstate treaties. It is clear from those treaties that public service broadcasters (ARD and ZDF at national level (3) and others, such as SWR, (4) at regional level) are financed from revenue raised, in essence, from three sources: the broadcasting fee (the subject matter of this reference), (5) the sale of advertising space and other commercial activities.

3.        In 2007, the Commission stated (6) that the method for financing German public service broadcasting could be classified as ‘existing aid’ within the meaning of Article 1(b)(i) of Regulation (EC) No 659/1999. (7) In its 2007 Decision, however, the Commission found that certain aspects of that method made it incompatible with the internal market and for that reason called upon the German Government to adopt various measures, which it did. None of those measures related to the fee (formerly, charge) at issue in this reference for a preliminary ruling.

4.        In 2013, an amendment was made to that source of financing: in short, whereas, previously, the fee became chargeable on the basis of possession of each broadcast-receiving device that was present within a dwelling, since then, mere possession of the dwelling as owner or tenant has been sufficient to trigger chargeability. (8)

5.        The new criterion for calculating the contested fee has been challenged before various German courts, (9) including the Landgericht Tübingen (Regional Court, Tübingen, Germany), which has raised before the Court of Justice its doubts about the compatibility of that fee with EU law.

6.        In accordance with the Court’s instructions, this Opinion will be confined to an analysis of the questions referred that relate to State aid.

I.      Legislative framework

A.      EU law

1.      Protocol No 29 annexed to the TFEU

7.        Sensitive to the role which public service broadcasting systems play in the Member States in the context of the democratic, social and cultural needs of each society and the need to preserve media pluralism, which it expresses in its first recital, Protocol No 29 annexed to the TFEU, on the system of public broadcasting in the Member States, which was introduced by the Treaty of Amsterdam, (10) reads as follows:

‘The provisions of the Treaties shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting in so far as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and in so far as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account.’

2.      Regulation No 659/1999

8.        Article 1 provides:

‘For the purposes of this Regulation:

(a)      “aid” shall mean any measure fulfilling all the criteria laid down in Article [107](1) of the Treaty;

(b)      “existing aid” shall mean:

(i)      ... all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty;

(ii)      authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;

(c)      “new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;

(f)      “unlawful aid” shall mean new aid put into effect in contravention of Article 93(3) of the [FEU] Treaty;

…’

3.      Regulation (EC) No 794/2004 (11)

9.        Recital 4 reads:

‘(4)      In the interests of legal certainty it is appropriate to make it clear that small increases of up to 20% of the original budget of an aid scheme, in particular to take account of the effects of inflation, should not need to be notified to the Commission as they are unlikely to affect the Commission’s original assessment of the compatibility of the scheme, provided that the other conditions of the aid scheme remain unchanged.’

10.      Article 4 provides:

‘1.      For the purposes of Article 1(c) of Regulation (EC) No 659/1999, an alteration to existing aid shall mean any change, other than modifications of a purely formal or administrative nature which cannot affect the evaluation of the compatibility of the aid measure with the common market. However, an increase in the original budget of an existing aid scheme by up to 20% shall not be considered an alteration to existing aid.

…’

4.      Communication from the Commission on the application of State aid rules to public service broadcasting (12)

11.      Point 21 states:

‘The effect of State intervention, not its purpose, is the decisive element in any assessment of its State aid content under Article [107](1). Public service broadcasters are normally financed out of the State budget or through a levy on broadcasting equipment holders. … These financial measures are normally attributable to the public authorities and involve the transfer of State resources ...’

B.      German law

12.      For the purposes of this dispute, the principal public service broadcasting treaties between the Länder are: (a) the Treaty on Broadcasting and Electronic Media; (13) (b) the Treaty on the Financing of Broadcasting; (14) and (c) the Treaty on the Broadcasting Fee. (15)

1.      Interstate Treaty on Broadcasting

13.      Paragraphs 12 to 14 lay down the basic principles on which the financing of public service broadcasting in Germany is based. Funding has to enable public service broadcasters to perform the tasks defined by the Constitution and by statute, and ensure the ongoing existence and development of public service broadcasting.

14.      Paragraph 13 lists the three basic pillars of financing (the broadcasting fee, advertising revenue and other revenue streams), and emphasises that the fee is to be the principal source of revenue.

15.      The Treaty establishes a committee for the review and determination of the financial needs of public service broadcasters. (16) In accordance with Paragraph 14, those needs are calculated, account being taken of the principles of economy and efficiency, including openness to opportunities for rationalisation, on the basis of the forecasts drawn up by the public service broadcasters themselves.

16.      So far as concerns the setting of the amount of the fee, Paragraph 14(4) refers to the Treaty on the Broadcasting Fee.

2.      Land Law on the broadcasting fee (17)

17.      Since it falls to the Länder to incorporate the aforementioned treaties into their legislation, mention must be made of the Law of the Land of Baden-Württemberg the compatibility of which with EU law forms the subject of the questions referred by the national court in this case.

18.      Paragraph 1 provides:

‘The broadcasting fee is intended to provide operational funding for public service broadcasting within the meaning of Paragraph 12(1) of the Interstate Treaty on Broadcasting as well as financing for the tasks defined in Paragraph 40 of the Interstate Treaty on Broadcasting.’

19.      Paragraph 2 provides:

‘1.      In the private sector, every dwelling shall be subject to a broadcasting fee payable by the householder (the person liable to the fee).

2.      The householder shall be any person of legal age who lives in the dwelling him/herself. The householder shall be deemed to be any person who:

1.      has registered him/herself as living there in accordance with the law on the registration of residence, or

2.      is listed as the tenant in the lease agreement relating to the dwelling in question.

…’

20.      Paragraph 10 provides that revenue from the broadcasting fee is to accrue principally to the Land broadcasting organisation local to the place where the dwelling is situated.

21.      Paragraph 10 also states:

‘…

(5)      The amount of any unpaid broadcasting fees shall be determined by the competent Land broadcasting organisation …

(6)      Unpaid fee assessment notices shall be enforced by way of administrative enforcement proceedings …’

3.      The Law governing administrative enforcement proceedings in the Land of Baden-Württemberg (18)

22.      In Germany, the recovery of debts owed to the administrative authorities is governed by the laws of the Länder. Paragraphs 13 and 14 of the corresponding law of the Land of Baden-Württemberg relate, on the one hand, to the acts on account of which and headings under which amounts owed to the administrative authorities may be the subject of enforcement and, on the other hand, to the requisite formalities. The administrative authority has a duty to issue a notice to pay giving the person liable to the fee at least one week within which to make voluntary settlement.

23.      Paragraph 15, relating to the recovery of claims by way of administrative enforcement, refers, in essence, to the provisions contained in the Abgabenordnung (Tax Code). Those provisions are to be applied mutatis mutandis, with the exception that the claim is to be recovered not by an officer of the courts but by the competent administrative authority. (19)

II.    Facts giving rise to the dispute and the questions referred for a preliminary ruling

24.      The debtors in the proceedings pending before the referring court are persons liable to the broadcasting fee that did not pay it, or paid it only in part, for various periods between January 2013 and late 2016.

25.      In 2015 and 2016, SWR, acting on the basis of its own unpaid fee assessment notice and almost always with a view to recovering sums of several hundred euros, issued against each of the debtors an enforcement order for payment of the fee plus a reminder fee and late payment penalty.

26.      The debtors refused to pay on the basis of a challenge to the conformity of the new rules with, inter alia, Article 108 TFEU. In their view: (a) the change of taxable event was substantial and should therefore have been notified to the Commission before it became effective; (b) the fee was used to finance a monopoly over the DVB-T2 system for the transmission of terrestrial digital television, which excludes foreign operators; and (c) the system for the compulsory enforcement of unpaid fees, by way of autonomous administrative execution, represents further aid incompatible with Article 107 TFEU, inasmuch as it removes public service broadcasters from the ordinary compulsory enforcement procedure.

27.      The Amtsgericht Tübingen (Local Court, Tübingen, Germany) temporarily suspended three of those compulsory enforcement procedures on application by the debtors. In the other three sets of proceedings, the competent courts in the city of Reutlingen and the town of Calw dismissed the applications brought by the respective debtors.

28.      Those decisions have each been appealed to the Landgericht Tübingen (Regional Court, Tübingen). In three of those appeals, SWR challenges the suspension of the aforementioned procedures. In the other three, the debtors dispute the dismissal of their claims.

29.      So far as concerns the questions I shall be analysing in this Opinion, the referring court points out, first, that the fee accrues only to public service broadcasters, in particular to ZDF and SWR. Since it is not voluntary, is not subject to any conditions and does not entail any consideration, the fee is akin to a tax and, because provided for in legislation, constitutes State aid. (20)

30.      For the referring court, the legislative change to the event triggering the chargeability of the fee (previously, possession of a receiver; now, possession of a dwelling), which came into effect on 1 January 2013, amounts to a substantial amendment which should have been notified to the Commission pursuant to Article 108(3) TFEU. In any event, the aid resulting from that amendment is vitiated by incompatibility with the internal market under Article 107(3) TFEU.

31.      Secondly, the fee is contrary to EU law, since some of the revenue so raised is being used to set up a system (DVB-T2) for the transmission of terrestrial digital television which is operated as a monopoly and from which broadcasters from other Member States are excluded. In the view of the referring court, this state of affairs is comparable to that which gave rise to the judgment of 15 September 2011, Germany v Commission, concerning the switch from analogue to digital technology. (21)

32.      Furthermore, the referring court submits, this is a tax levied for a particular purpose, the number of persons liable to it having been extended to include the entire adult population, thus generating a significant increase in revenue of approximately EUR 700 million a year. In short, the new rules constitute illegal State aid inasmuch as the activities carried on by public and private broadcasters via the DVB-T2 system are being financed from taxation.

33.      The referring court considers, thirdly, that the public service broadcasters benefit from further State aid inasmuch as they are permitted to issue their own enforcement instruments to recover unpaid fees. The enforcement mechanism available under public law, which is more effective, expeditious and economical than the ordinary enforcement procedure, which the administrative authorities do not have to use, reduces the costs of execution.

34.      It was in those circumstances that the Landgericht Tübingen (Regional Court, Tübingen) referred to the Court of Justice for a preliminary ruling seven questions, of which, for the reasons given above, only the first three are reproduced below:

‘(1)      Is the national … Baden-Württemberg law of 18 October 2011 on the application of the interstate treaty on the broadcasting contribution fee … of 17 December 2010, last amended by Article 4 of the … 19th treaty amending the interstate broadcasting treaty of 3 December 2015 … incompatible with EU law because the contribution fee unconditionally levied since 1 January 2013 in principle from every adult living in the German Land of Baden-Württemberg to finance the public service broadcasters SWR … and ZDF … represents preferential aid that infringes EU law for the exclusive benefit of the public service broadcasting bodies compared to private broadcasting organisations? Are Articles 107 and 108 TFEU to be interpreted as meaning that the law on the broadcasting contribution fee should have been approved by the Commission and is invalid without that approval?

(2)      Are Articles 107 and 108 TFEU to be interpreted as encompassing the provision laid down in the national [Land law on the broadcasting contribution fee] under which a contribution fee for the exclusive benefit of official/public service broadcasters is unconditionally levied in principle from every adult living in Baden-Württemberg, because this contribution fee contains preferential aid that infringes EU law with the effect that broadcasters from other EU countries are excluded from certain technology, as the contribution fees are used to set up a competing transmission method (DVB-T2 monopoly) whose use by foreign broadcasters is not provided for? Are Articles 107 and 108 TFEU to be interpreted as encompassing not only direct financial aid but also other privileges with economic relevance (right to issue enforcement instruments, authority to act both as an economic undertaking and also as an official body, better position in the calculation of debts)?

(3)      Is it compatible with the principle of equal treatment and the prohibition of preferential aid if, under a national Baden-Württemberg law, a German television broadcaster which is organised under public law and takes the form of a public body but which at the same time also competes with private broadcasters for advertising is put in a privileged position compared to them, in that, unlike its private competitors, it does not have to go through the ordinary courts to obtain an enforcement instrument for its claims against viewers before being able to enforce these claims, but is itself permitted to create such an instrument equally entitling it to enforcement without the need for a court?’

III. Procedure before the Court of Justice

35.      The order for reference was received at the Registry of the Court of Justice on 11 August 2017. Written observations were lodged by SWR, the German Government, the Swedish Government and the European Commission, representatives of which attended the hearing on 4 July 2018.

36.      At the hearing, the parties commented on the specific questions which the Court had asked them to address: (a) the reasons why the fee was introduced; (b) the increase in revenue resulting from the legislative amendment and the fact that that revenue is being used exclusively to finance the activities of public service broadcasters; and (c) the mechanics of the process for enforcing unpaid fees.

IV.    Analysis

37.      In its written observations, SWR and the German Government submitted that the reference for a preliminary ruling is partially or totally inadmissible. In this Opinion, the scope of which is limited, being confined to the questions set out above, I shall not comment on this objection, except inasmuch as it relates to the second question.

A.      Whether the amendment to the broadcasting fee constitutes new aid (first question referred)

1.      Summary of the arguments of the parties

38.      All the parties which have submitted observations agree that the Land Law does not substantially amend the aid examined in the 2007 Decision. Consequently, since it does not warrant classification as new aid, it does not need to be notified to the Commission.

39.      SWR, supported by the German Government, submits that the measure at issue does not fulfil the conditions for compulsory notification laid down by the case-law of the Court. (22) Thus, the Land Law did not change: (a) the scope of the activities covered by public service broadcasting; (b) the beneficiaries of the fee, who continue to be exclusively public service broadcasters; (c) the source of financing, inasmuch as the criterion continues to be the possibility of receiving broadcasts rather than the fact of actually watching or listening to them; or (d) the amount of the fee. The change to the chargeable event, it contends, comes in response to the need to address the rising levels of late payment and to lower the burden of proof applicable in the various default procedures available.

40.      Starting from the premiss that the scheme for financing German public service broadcasters had already been classified as existing aid by the 2007 Decision, the Swedish Government states that the scope of the change introduced should be analysed. The reform of the method for levying the fee is simply an administrative modification which does nothing to alter the substance of the scheme. There is, therefore, no alteration to existing aid within the meaning of Article 4(1) of Regulation No 794/2004 and the 2009 Communication. In any event, according to Protocol No 29, the provisions of the TFEU do not prevent the Member States from prescribing how public service broadcasting is to be financed.

41.      The Commission takes the view, in keeping with points 142 to 151 of the 2007 Decision, that the revenue raised from the broadcasting fee warrants the same classification as State aid as the revenue obtained from the previous charge.

42.      The former revenue, after all, continues to be subject to criteria laid down by law, (23) as benefiting a public body operating in the general interest, and is raised, calculated and used under State control. (24) In short, it constitutes financing by the State or from State resources. (25)

43.      The Commission concurs with the view expressed by SWR and the German Government that no change has been made to the objective pursued, to the nature of the advantage, to the group of beneficiaries or activities pursued by them, or to the legal basis or amount of the broadcasting fee, the only modification having been to the basis of calculation (which is no longer the receiver but the dwelling). That modification was justified by technological changes, in particular the multiplication of mobile multimedia devices.

2.      Assessment

44.      Although the first question referred for a preliminary ruling contains two questions, it will in fact be sufficient to determine whether the new Land Law should have been notified to the Commission on the ground that it meant a substantial change to the financing scheme approved (subject to certain conditions) by the 2007 Decision.

45.      According to case-law, alterations to a State aid scheme may affect both existing aid and initial plans notified to the Commission. (26) In this case, it is common ground that the 2011 statutory reform alters existing aid or a previously approved aid scheme within the meaning of Article 1(c) of Regulation No 659/1999.

46.      The issue, therefore, is whether such an alteration is substantial or of a purely formal or administrative nature. Once this has been established, it will be possible to ascertain whether the new measure is compatible with the common market, (27) according to the criteria laid down in Article 4(1) of Regulation No 794/2004.

47.      Whether a change to existing aid is minor, and, as such, would not have to be notified, depends on whether the alterations affect ‘basic features of the previous system of aids’. (28) A ‘substantial alteration’ will be present in the case where changes are made to one or more of those basic features, be the latter subjective, (29) objective (30) or temporal. (31)

48.      In the case of aid existing prior to the entry into force of the TFEU, the significance of the alteration will have to be assessed by reference to the purport of the aid itself, its terms and its limits. (32) However, where, as in this case, the aid, whether existing or not, (33) has previously been examined and approved by the Commission, it is the latter’s decision that will serve as the yardstick. (34)

49.      In the light of those premisses, I consider that the reform introduced by the Land Law is not caught by the concept of a substantial alteration to the previous scheme.

50.      The alteration at issue affects the financing of a service of general economic interest (public service broadcasting in Germany), which is also subject to the distinction between existing and new aid. (35) So it was that, in the 2007 Decision, the Commission analysed both the presence of an advantage in the financing of public service broadcasting through the (then) broadcasting charge, in the light of the criteria set out in the Altmark case-law, (36) and the compatibility of that financing with the internal market, in accordance with Article 106(2) TFEU.

51.      I would reiterate that the change introduced by the Land Law was to replace possession of a device for receiving signals transmitted by German broadcasters, as the event triggering the obligation to pay the broadcasting fee, with mere possession of a dwelling inhabited by a person of legal age. The rule, then, is ‘one fee per dwelling’.

52.      The information available supports the inference that that change has not affected the aid beneficiaries, who continue to be the public service broadcasters. It has affected the persons subject to the obligation to pay, since the obligation extends to householders who, previously, were not necessarily liable to the fee.

53.      Also intact are the temporal features of the aid, inasmuch as, for as long as the constitutional requirement to which I referred earlier (37) remains in being, the public authorities will have to make provision to ensure that broadcasters have the resources they need to fulfil the remit entrusted to them.

54.      As regards the objective features of the aid, no change has been made to the purpose of the measure (to finance public service broadcasting) or the group of activities subsidised. The alteration is confined, as I have already made clear, to replacing possession of a device with occupation of a dwelling.

55.      In theory, that alteration might bring with it an increase in the number of persons liable to the fee and, consequently, an increase in the revenue accruing to broadcasters on that basis. In practice, however, this does not appear to have been the case. The Commission reproduced figures published by the KEF (38) which show that fee revenue remained stable between 2009 (before the legislative amendment) and 2016. (39)

56.      In any event, the amount received by the public service broadcasters is not dependent only on overall fee receipts. (40) Prominent among the factors that affect how much revenue from the broadcasting fee eventually devolves to those organisations is the intervention of the KEF, which monitors and calculates the financial needs of the public service broadcasters. (41) The reports produced by the KEF form the basis of the formal decisions by which the parliaments and governments of the Länder set the amount of the fee. (42)

57.      It can thus be seen that neither the increase in the number of persons liable to the fee nor the (alleged) increase in the revenue eventually raised in this way is of any relevance in determining whether the measure at issue is new within the meaning indicated above. However much that revenue might be, the proportion of it that will go to the public service broadcasters (that is to say, the proportion that can genuinely be classified as State aid) is fixed, following the intervention of the KEF, by the governments and parliaments of the Länder. There is, therefore, no automatic link between the increase (if any) in the eventual revenue and the amount of the aid received by the public service broadcasters.

58.      In other words, a change to the role assigned to the KEF, (43) to the criteria it employs to determine objective funding requirements or to the obligation of the Land governments and parliaments to abide by its proposals in setting the amount of the fee would have a greater potential impact on the amount of the aid than the change to the objective feature constituted by the event triggering liability to the fee.

59.      It is important to bear in mind that, in so far as we are using as the parameters for our analysis the criteria laid down in the Altman case-law, the KEF’s intervention is important in ensuring that the aid given to public service broadcasters adheres to, and does not exceed, the amounts necessary to defray the costs inherent in the public service obligation incumbent on them. (44)

60.      This is consistent with Protocol No 29 annexed to the TFEU, which recognises the right of the Member States to finance public service broadcasting ‘in so far as’ the funding granted to broadcasting organisations serves to ‘fulfil … the public service remit conferred, defined and organised by each Member State’.

61.      The KEF is also there to ensure that income generated from the commercial activities of public service broadcasters is deducted from the amount of the aid. The same is true of any surplus revenue not used to cover forecast costs. (45) According to the German Government, any surplus revenue is fed into the financial reserves of the public service broadcasters. The latter cannot avail themselves of those reserves until the KEF has analysed them in order to evaluate the broadcasters’ funding requirements.

62.      In that context, a mere alteration of the basis for determining the obligation to pay incumbent on persons liable to the fee is not, in itself, such as to change the amount of the public aid received by public service broadcasters or, therefore, to have any bearing on the compatibility of that aid with the internal market. (46)

63.      It is also worth pointing out, for the sake of completeness, that the change to the chargeable event is also explained, inter alia, by advances in technology. Retaining the previous scheme (‘one charge per device’) would have brought with it the risk of multiplying revenue streams, given the proliferation of new devices, such as personal computers (47) and smart phones, among others, that provide access to broadcast programming. (48)

64.      The reform also serves the purpose of making it easier to manage the fee recovery process, which, as the observations submitted reveal, had been beset by an increase in late payments under the scheme based on possession of a receiver.

65.      In those circumstances, I take the view that the change introduced by the Land Law is not such, either qualitatively or quantitatively, as to warrant classification as a substantial alteration, within the meaning of Article 4(1) of Regulation No 794/2004 read in conjunction with Article 1(c) of Regulation No 659/1999, that should be notified to the Commission.

B.      Whether the fee constitutes aid for the creation of a competing transmission method (DVB-T2 monopoly) the use of which by foreign broadcasters is not provided for (first part of the second question)

1.      Summary of the arguments of the parties

66.      In its written observations, SWR submits that the technical accessibility of public service broadcasting is closely linked to the general interest remit of the organisations that provide it. It denies that the DVB-T2 transmission system creates a monopoly in favour of public service broadcasters, given that, of the 40 channels under that system, 26 are available to competitors. In any event, its development does not represent an advantage within the meaning of Article 107 TFEU or discriminate against foreign operators, given that the functions performed by the latter require them, by definition, to transmit throughout the territory for which they provide broadcasting.

67.      The German Government endorses SWR’s submissions, although it lays emphasis principally on the irrelevance of the launch of the DVB-T2 digital terrestrial transmission system for the purposes of evaluating the change to the broadcasting fee in the light of the rules governing State aid in the FEU Treaty.

68.      The Commission, too, fails to see how the use of revenue from the broadcasting fee for investment in new technology might lead to the creation of a monopoly in the field of DVB-T2 digital terrestrial television and produces data to show that that system has been made available to private operators. On the one hand, it considers that investment by public service broadcasters is a cost associated with fulfilment of the general interest remit. On the other hand, it refers to paragraph 74 of the Communication on public service broadcasting, in which express mention is made of the creation of exceptional financial reserves for large-scale technological investment essential to the aforementioned public service remit. Such investment is therefore, it argues, compatible with Article 106(2) TFEU.

69.      The Swedish Government did not comment on this question.

2.      Assessment

70.      By the first part of its second question, the referring court appears to be asking for a declaration that the broadcasting fee as provided for in the Land Law at issue is incompatible with Articles 107 and 108 TFEU because the revenue from it is being used to facilitate the transition from the DVB-T system for the digital transmission of signals to a more advanced system (DVB-T2) from which broadcasters from other Member States are excluded.

71.      I concur with the criticism which those who have lodged written observations have directed at the relevance of this question and the way in which it has been raised, inasmuch as it does not explain with the necessary clarity the legal reference framework. This fact makes it impossible to determine whether the Land Law is compatible in this regard with EU law.

72.      In the alternative, I take the view that the question is based on premisses which are ambiguous or insufficiently verified. In reference, for example, to the DVB-T2 technology, it describes this as a monopoly, when it is in fact open to public and private broadcasters alike and German public service operators do not therefore enjoy a privileged position in relation to private operators.

73.      In the transition to the new DVB-T2 technology, it is the competent authorities (not broadcasting organisations) which make decisions on transmission capacities and distribution areas. As the Commission states, whatever changes have been made to the event triggering the chargeability of the broadcasting fee, they have nothing to do with the fact that, in Germany as in other Member States, the number of frequencies available is limited under other legislation.

74.      The fact that the funds raised from the broadcasting fee are used to enable public service broadcasters to access the DVB-T2 technology does not, in and of itself, invalidate the Land Law or necessarily amount to State aid contrary to the TFEU. As I have already indicated in reply to the first question, the KEF is required to analyse spending and investment (including in connection with technological improvements such as the DVB-T2) in order to determine which items under those headings are justified by the public service functions entrusted to the organisations under its scrutiny. (49)

75.      Consequently, even if the Court could provide the referring court with guidance in relation to the classification as State aid of sums raised from the broadcasting fee which are used to set up the DVB-T2 system, such explanations would be of no interest from the point of view of determining whether the Land Law is compatible with EU law.

C.      Whether the mechanism for the administrative enforcement of unpaid broadcasting fees constitutes State aid (second part of the second question and third question)

1.      Summary of the arguments of the parties

76.      SWR and the German Government submit that, in collecting the broadcasting fee, including by way of enforcement, regional broadcasters fulfil the public service remit which has been entrusted to them by law and act as bodies governed by public law (that is to say, as indirect authorities of the State), which fact sets them apart from private operators.

77.      They make the point that the use of administrative enforcement to recover debts arising from non-payment of the broadcasting fee was one of the factors which the Commission evaluated in the 2007 Decision.

78.      The German Government goes on to say that the financing of public service broadcasting, the chargeable event and the method of collection are all matters falling within the competence of the Member States.

79.      For the Commission, the fact that public operators are able to issue enforcement instruments constitutes an advantage over their private counterparts. In so far as such a privilege forms part of the compensation which public service broadcasters receive in return for fulfilment of their public service remit, it is compatible with the rules on State aid. (50) It may be described as a right attendant upon the public service broadcasting remit and is part and parcel of the existing aid, as it was declared to be in the 2007 Decision.

80.      The Swedish Government did not submit observations on this question either.

2.      Assessment

81.      The third question is linked to the second part of the second question, both being concerned exclusively with the administrative enforcement scheme for the recovery of unpaid fees. I shall therefore examine them together.

82.      The Court has already had occasion to deal, albeit tangentially, with a question concerning the system for the administrative enforcement of outstanding claims to broadcasting fees. On that occasion, it found that bodies having the option to pursue such enforcement were vested with public authority powers. (51) The fact that that case concerned public contracts does not preclude the same conclusion from being transposed to the present case.

83.      It is true that, in accordance with the judgment in Trapeza Eurobank Ergasias, (52) to which the Commission refers, such a measure could be classified as conferring a privilege [on public operators] as compared with other, private operators. It must not be forgotten, however, that the broadcasting fee is intended to finance only the public service remit assigned to public broadcasters, not commercial activities. Consequently, recovery by way of autonomous administrative execution ensures that the resources necessary to deliver that service, in accordance with the requirement laid down by law, are raised.

84.      If, as the referring court states, the broadcasting fee is similar in nature to a tax, it is not unreasonable that the same (enforcement) instruments should be used to secure its collection as are used for the collection of taxes. By virtue of their character as public authority powers, the processes of recovery both by voluntary means and by way of enforcement are indicative of the fee’s inherent features as a vehicle for guaranteeing the provision of public service broadcasting. The system of compulsory enforcement also contributes towards the efficient raising of resources.

85.      In any event, the key argument in replying to this question, in so far as it relates to the rules governing State aid, is, as SWR and the German Government submit, that, in the 2007 Decision, the Commission already took into account the existence of the power to recover unpaid fees by way of an administrative enforcement procedure.

86.      The Commission stated in that decision that broadcasters had been given the right to collect the broadcasting fee directly, including by way of administrative enforcement. (53) That assessment supported the view that revenue obtained in this way remained under public control and was therefore in the nature of State resources within the meaning of Article 107(1) TFEU. (54)

87.      As the Land Law did not make any new provision in this regard, but retained intact the system of administrative enforcement contained in the previous legislation, that law benefits from the protection of the 2007 Decision.

88.      Furthermore, the difference in the treatment of public and private broadcasting operators in this regard cannot be analysed in isolation but must be viewed within the context of the collection of rights and obligations which those two categories of operator each assume in law. Bodies governed by public law are subject to certain limitations, arising from the fulfilment of their public service functions, from which private operators are exempt. On the other hand, there is nothing to stop them availing themselves of powers, subject to subsequent judicial review, which are more extensive than those available under private law.

89.      The disparity between the rights and obligations attaching to the two categories of operator may justify the fact that, in the context of the collection of a fee in the nature of a levy under public law, use is made of the administrative instruments available for the compulsory enforcement of claims, in the event of non-payment of that fee.

V.      Conclusion

90.      In the light of the foregoing, I propose that the Court of Justice should declare the first part of the second question to be inadmissible and, in relation to the first three questions, should reply to the Landgericht Tübingen (Regional Court, Tübingen, Germany) as follows:

(1)      The Law of the Land of Baden-Württemberg of 18 October 2011 on the application of the interstate treaty on the broadcasting contribution fee of 17 December 2010, which changes the event triggering the chargeability of the broadcasting fee from possession of a receiver to possession of a dwelling:

–        does not constitute an alteration of existing aid within the meaning of Article 4(1) of Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU]; and

–        does not therefore create new aid within the meaning of Article 1(c) of Regulation No 659/1999 which should have been notified to the Commission under Article 108(3) TFEU or approved by it.

(2)      Articles 107 and 108 TFEU do not preclude national legislation, such as the aforementioned Law of the Land of Baden-Württemberg, which authorises public service broadcasters financed from a broadcasting fee to issue and execute their own enforcement instruments in order to recover that fee in the event of non-payment, without needing to apply to the ordinary courts.


1      Original language: Spanish.


2      Judgment of 24 February 1961 (BVerfGE 12, 205-1. Rundfunkentscheidung, paragraph 182).


3      Acronyms for the two main public television channels in Germany. ARD stands for ‘Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland’ (Consortium of public service broadcasting organisations in the Federal Republic of Germany) and ZDF for ‘Zweites Deutsches Fernsehen’ (Second German television channel).


4      ‘Südwestrundfunk, Anstalt des öffentlichen Rechts’ (South west broadcasting organisation, a body governed by public law; ‘SWR’).


5      I shall use the word ‘fee’ to refer to the ‘Rundfunkbeitrag’ (broadcasting contribution), which has been in place since 2013. Before then, it had been known in German law as the ‘Rundfunkgebühr’, that is to say, broadcasting charge. Nonetheless, counsel for SWR stated at the hearing that the legal nature of the broadcasting charge under the previous legislation was effectively the same as that of the current broadcasting fee, having been levied on the basis of the possibility of receiving public service broadcasts, not on the basis of their actual receipt.


6      C(2007) 1761 final. State aid E/2005 (ex CP 2/2003, CP 232/2002, CP 43/2003, CP 243/2004 and CP 195/2004) — Financing of public service broadcasters in Germany (‘2007 Decision’), available only in English and German, points 200 to 216.


7      Council Regulation of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty [now Article 108 TFEU] (OJ 1999 L 83, p. 1). This was replaced by Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9), which is not applicable ratione temporis to this case.


8      The fee is also levied on business owners, on the basis of various factors (business premises and vehicles used for business purposes). Given that the disputes before the referring court do not involve a business owner, I shall refer only to the fee payable by natural persons in possession of a dwelling.


9      The Bundesverwaltungsgericht (Federal Administrative Court, Germany) ruled on the new criterion in its judgment of 18 March 2016. The Bundesverfassungsgericht (Federal Constitutional Court) declared the fee reform to be in conformity with the Basic Law, except in so far as it applied to secondary residences, in the judgment of 18 July 2018 (Cases 1 BvR 1675/16, 1 BvR 745/17, 1 BvR 836/17 and 1 BvR 981/17).


10      OJ 1997 C 340, p. 109. It is for this reason that it is also known as the ‘Amsterdam Protocol’.


11      Commission Regulation of 21 April 2004 implementing Regulation No 659/1999 (OJ 2004 L 140, p. 1).


12      OJ 2009 C 257, p. 1 (‘the 2009 Communication’).


13      ‘Rundfunkstaatsvertrag’, which contains the basic legislation governing the two-tier system of broadcasting in Germany; the latest (21st) reform was adopted on 18 December 2017 and entered into force on 25 May 2018 (‘the Broadcasting Treaty’).


14      ‘Rundfunkfinanzierungsstaatsvertrag’ of 31 August 1991, as last amended by the 20th amendment to the Interstate Treaty on Public Service Broadcasting of 8 to 16 December 2016.


15      ‘Rundfunkbeitragsstaatsvertrag’, the current version of which dates back to 15 December 2010, as last amended in 2017; ‘the Treaty on the Broadcasting Fee’.


16      ‘Kommission zur Überprüfung und Ermittlung des Finanzbedarfs der Rundfunkanstalten’ (‘KEF’).


17      Baden-württembergisches Gesetz vom 18.10.2011 zur Geltung des Rundfunkbeitragsstaatsvertrags (RdFunkBeitrStVBW) vom 17. Dezember 2010 (Law of 18 October 2011 on the application of the Interstate Treaty on the broadcasting contribution fee of 17 December 2010), as last amended by Paragraph 4 of the 19th amendment to the Interstate Broadcasting Treaty of 3 December 2015 (Law of 23 February 2016 — GBl. p. 126 et seq., in particular, p. 129) (‘the Land Law’).


18      Verwaltungsvollstreckungsgesetz für Baden-Württemberg of 12 March 1974.


19      Paragraph 15a nonetheless allows the administrative authorities to resort to compulsory enforcement under civil law.


20      It relies in this regard on the judgment of 15 September 2011, Germany v Commission (C‑544/09 P, EU:C:2011:584).


21      Case C‑544/09 P, not published, EU:C:2011:584. The Court of Justice dismissed the appeal brought by Germany against the judgment of the General Court of 6 October 2009, Germany v Commission (T‑21/06, not published, EU:T:2009:387). In the latter judgment, the General Court had confirmed the validity of the Commission Decision of 9 November 2005 on the State aid granted by the Federal Republic of Germany for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg [notified under number C(2005) 3903] (OJ 2006 L 200, p. 14), which had declared such aid to be incompatible with the internal market.


22      It is referring to the judgment of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311).


23      By reference to the judgment of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71, paragraph 16), and the Commission Decision in Case NN 88/98, Financing of a 24-hour advertising-free news channel with licence fee by BBC (OJ 2000 C 78, p. 6).


24      Judgments of 6 May 2000, France v Ladbroke Racing and Commission (C‑83/98 P, EU:C:2000:248) and of 15 July 2004, Pearle and Others (C‑345/02, EU:C:2004:448); and the Opinion of Advocate General Ruiz-Jarabo Colomer in the latter case (EU:C:2004:145, point 67). The Commission also refers to two Commission decisions in Case N 631/2001, relating to the BBC licence fee — United Kingdom; and in Case E 2/2008, concerning the financing of ORF — Austria.


25      The Commission mentions the judgment of 5 October 2000, Commission v France (C‑337/98, EU:C:2000:543).


26      Judgment of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291, paragraph 46).


27      On the concept of an alteration of existing aid, see Opinion of Advocate General Wahl in Carrefour Hypermarchés and Others (C‑510/16, EU:C:2017:929, points 51 to 56).


28      In the words of Advocate General Trabucchi in his Opinion in Van der Hulst (C‑51/74, EU:C:1974:134, point 7).


29      For example, a significant extension of the group of beneficiaries.


30      For example, where changes are made to the advantages established by the scheme, the nature of those advantages, their amount or the activities of the undertaking benefiting from them. See judgment of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311, paragraph 29).


31      For example, an increase in the period of entitlement to the aid or a temporal extension of aid already granted. See judgments of 13 June 2013, HGA and Others v Commission (C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraphs 92 to 94); and of 26 October 2016, DEI and Commission v Alouminion tis Ellados (C‑590/14 P, EU:C:2016:797, paragraphs 58 and 59).


32      Judgment of 9 August 1994, Namur-Les assurances du crédit (C‑44/93, EU:C:1994:311, paragraph 28).


33      Judgment of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291, paragraphs 46 and 47).


34      This follows, for example, from the judgments of 25 October 2017, Commission v Italy (C‑467/15 P, EU:C:2017:799, paragraphs 37 to 44); and of 20 May 2010, Todaro Nunziatina & C. (C‑138/09, EU:C:2010:291, paragraphs 28 to 41).


35      Judgment of 15 March 1994, Banco Exterior de España (C‑387/92, EU:C:1994:100, paragraphs 17 and 18).


36      Judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the Altmark case-law’). See points 157 to 169 of the 2007 Decision.


37      Point 1 of this Opinion.


38      Those figures report revenue (in millions of euros) which was stable between 2009 and 2016: in 2009, 7 416; in 2010, 7 362; in 2011, 7 347; in 2012, 7 306; in 2013, 7 480; in 2014, 8 082; in 2015, 7 842; and in 2016, 7 825. Those data are contained in KEF reports No 20 (2016), Table 124, p. 199 (2013-2016) (https://kef-online.de/fileadmin/KEF/Dateien/Berichte/20._Bericht.pdf); and No 19 (2014), Table 96, p. 141 (2009-2012) (https://kef-online.de/fileadmin/KEF/Dateien/Berichte/19._Bericht.pdf) (footnote 24 to the Commission’s observation).


39      This is corroborated by the data produced by the German Government at the hearing. Only in 2013/2014 did receipts rise by 8.7% as compared with 2012, the last financial year under the previous legislation. On the basis of that increase, however, the broadcasting fee was actually reduced with effect from 1 April 2015 (from EUR 17,98 to EUR 17,50, of which 30 centimes were assigned to financial reserves).


40      See to this effect, albeit in a different context, the judgment of 13 January 2005, Streekgewest (C‑174/02, EU:C:2005:10, paragraph 28).


41      See point 15 of this Opinion.


42      Judgment of 13 December 2007, Bayerischer Rundfunk and Others (C‑337/06, EU:C:2007:786, paragraph 21).


43      The German Government confirmed at the hearing that the 2011 reform had not affected the KEF’s powers.


44      Germany undertook to ensure that the KEF would base its calculations exclusively on the costs of fulfilling the public service broadcasting remit (2007 Decision, point 379). Broadcasters are nonetheless allowed to make a small profit and any surplus may be used to promote new media.


45      See points 382 and 385 of the 2007 Decision.


46      At the hearing, the Commission drew attention to the ongoing review which it is required to conduct under Article 108(1) TFEU and which it has been conducting since the adoption of the 2007 Decision. It emphasised that, to date, it had not found any alteration such as to prompt the need for a new examination of the compatibility with the internal market of the scheme for financing German public service broadcasting organisations.


47      The Bundesverfassungsgericht (Federal Constitutional Court) confirmed, by order of 22 August 2012, that possession of an internet-connected personal computer from which the user could receive programmes transmitted by public service broadcasters was sufficient to trigger the chargeability of the broadcasting fee (Case 1 BvR 199/11).


48      It is true, however, that, on a strict interpretation of the previous rules, the foreseeable growth in the range of devices triggering the obligation to pay would have made the fee difficult to collect in practice, given the considerable problems associated with monitoring possession of such devices.


49      In any event, it falls to the Commission to investigate the compatibility or otherwise of the public funds earmarked for the installation of the DVB-T2 system, which is a different issue that requires complex analysis. Such an analysis was carried out at the time of the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg, to which I referred in footnote 21.


50      It cites the judgment of 16 April 2015, Trapeza Eurobank Ergasias (C‑690/13, EU:C:2015:235).


51      Judgment of 13 December 2007, Bayerischer Rundfunk and Others (C‑337/06, EU:C:2007:786, paragraph 44).


52      Judgment of 16 April 2015 (C‑690/13, EU:C:2015:235, paragraph 29): ‘Article 87(1)EC must be interpreted as meaning that its scope of application may cover privileges, such as those at issue in the main proceedings, in accordance with which a bank has the right … to seek enforcement with an ordinary private document’.


53      2007 Decision, points 144 and 145.


54      2007 Decision, point 150.