Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04

TV 2/Danmark A/S and Others

v

Commission of the European Communities

(State aid – Measures implemented by the Danish authorities for the public broadcaster TV2 to finance its public service remit – Measures classified as State aid partly compatible and partly incompatible with the common market – Actions for annulment – Admissibility – Interest in bringing proceedings – Rights of the defence – Public broadcasting service – Definition and financing – State resources – Obligation to state the reasons on which the decision is based – Obligation to examine)

Summary of the Judgment

1.      Actions for annulment – Interest in bringing proceedings – Need for a vested and present interest

(Art. 230 EC)

2.      Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest – Member States’ discretion

(Art. 86(2) EC; Amsterdam Protocol)

3.      State aid – Commission decision to open a formal procedure to investigate a State measure provisionally classified as new aid – Duty to state reasons

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 6)

1.      An action for annulment is not admissible unless the natural or legal person who brought it has an interest in seeing the contested measure annulled.

In order for such an interest to be present, the annulment of the measure must of itself be capable of having legal consequences or, in other words, the action must be liable, if successful, to procure an advantage for the party who has brought it.

A State aid beneficiary thus has an interest in bringing an action against a Commission decision that such aid is partially compatible and partially incompatible with the common market where the Commission’s analysis shows that the classification of the contested measures as compatible and their classification as incompatible are mutually dependent and inseparably linked, so that it is not possible to examine the admissibility of the action by dividing the contested decision into two parts, the first classifying the contested measures as partly incompatible and the second classifying them as partly compatible.

Moreover, the interest in bringing an action, which must be vested and present as at the date on which the action is brought, can result from a genuine ‘risk’ that the applicants’ legal position will be affected by legal proceedings, or from the fact that the ‘risk’ of legal proceedings is vested and present.

(see paras 67-68, 72-74, 79)

2.      Member States enjoy a broad discretion in defining what they regard as services of general economic interest. Accordingly, the definition of such services by a Member State can be queried by the Commission only in the event of manifest error.

The possibility open to Member States to define broadcasting services of general economic interest broadly, so as to cover the broadcasting of full-spectrum programming, cannot be called into question by the fact that the public service broadcaster also engages in commercial activities, in particular the sale of advertising space. Calling such activities into question would be tantamount to making the very definition of the broadcasting service of general economic interest dependent on its method of financing. A service of general economic interest is defined, ex hypothesi, in relation to the general interest which it is designed to satisfy and not in relation to the means of ensuring its provision.

(see paras 101, 107-108)

3.      Under Article 6 of Council Regulation No 659/1999 on procedure in State aid cases, where the Commission decides to initiate the formal investigation procedure in relation to a national measure, it is permissible for that decision merely to summarise the relevant issues of fact and law, to include a preliminary assessment as to the aid character of the State measure in question and to set out its doubts as to the measure’s compatibility with the common market. Thus, a decision to initiate the procedure must give interested parties the opportunity effectively to participate in the formal investigation procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties concerned to be aware of the reasoning which has led the Commission to conclude provisionally that the measure in issue might constitute new aid incompatible with the common market.

(see paras 138-139)