Notice for the OJ
Action brought on 3 August 2004 by the Kingdom of Denmark against the Commission of the European Communities
(Case T-317/04)
Language of the case: Danish
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 3 August 2004 by the Kingdom of Denmark, represented by Jørgen Molde, assisted by Peter Biering and Kim Lundgaard Hansen, lawyers.
The applicant claims that the Court should:
- annul Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;
- in the alternative, annul Article 2 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;
- in the alternative, annul Articles 2, 3 and 4 of Commission Decision of 19 May 2004 concerning Denmark's measures in favour of TV2/Danmark;
- order the Commission to pay the costs.
Pleas in law and main arguments:
By the contested decision, the Commission approved the aid granted to TV2/DANMARK A/S from 1995 to 2002 in the form of licence-fee resources and certain other measures as compatible with the common market, except for an amount of DKK 628.2 million which, in the Commission's view, constitutes unlawful State aid which the Kingdom of Denmark is obliged to recover from TV2/DANMARK A/S.
The Danish Government states in support of its action that the Commission's decision of 19 May 2004:
- fails to comply with essential procedural requirements;
- infringes Article 295 EC, the provisions of the Treaty concerning State aid contained in Article 87(1) EC and Article 86(2) EC and the Communication from the Commission on the application of State aid rules to public service broadcasting; and
- infringes Council Regulation (EC) No 659/1999
1 and Commission Directive 80/723/EEC.
2The Danish Government puts forward the following in support of its principal action for annulment:
- that the principle that both sides must be heard has been disregarded, which has deprived the Danish Government of the opportunity to defend itself, thereby affecting the outcome in the Commission's decision;
- that neither the licence-fee resources transferred to TV2 nor the advertising revenue, which was transferred to TV2 through the TV2 fund until it was abolished in 1997, are State aid, since they are not State resources within the meaning of Article 87;
- that the capital built up in TV2 from 1995 to 2002 constitutes reasonable earnings in the performance of its public service obligations and that, accordingly, it is not 'excess compensation' constituting State aid contrary to the EC Treaty;
- that the Commission's calculation of 'excess compensation' is incorrect;
- that there is no State aid, even though the transferred funds exceed TV2's net costs inherent in the performance of its public service obligations, since the funds have in fact not been used to cross-subsidise commercial activities and therefore do not distort competition;
- that any State funds transferred to TV2 must be considered to have been transferred in accordance with the criterion of the private investor in a market economy and that it is therefore not State aid.
____________1 - Council Regulation (EC) No 659/1999 of 22.3.1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). 2 - Commission Directive 80/723/EEC of 25.6.1980 on the transparency of financial relations between Member States and public undertakings (OJ 1980 L 195, p. 35).