JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
24 September 2015 (*)
(State aid — Public-service broadcasting — Decision declaring aid compatible with the internal market — Aid implemented by the Danish authorities in favour of the Danish public-service broadcaster TV2/Danmark — Public funding granted to offset the costs involved in the performance of public-service obligations — Compatibility of aid — Judgment in Altmark)
In Case T‑125/12,
Viasat Broadcasting UK Ltd, established in West Drayton (United Kingdom), represented by S. Kalsmose-Hjelmborg and M. Honoré, lawyers,
applicant,
v
European Commission, represented by L. Flynn and B. Stromsky, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented initially by C. Vang and V. Pasternak Jørgensen, acting as Agents, and subsequently by V. Pasternak Jørgensen and K. Lundgaard Hansen, lawyer, and finally by C. Thorning, acting as Agent, and by K. Lundgaard Hansen and R. Holgaard, lawyer,
and by
TV2/Danmark A/S, established in Odense (Denmark), represented by O. Koktvedgaard, lawyer,
interveners,
APPLICATION for annulment in part of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark (OJ 2011 L 340, p. 1),
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, N.J. Forwood and C. Wetter, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 15 January 2015,
gives the following
Judgment
Background to and facts of the case
1 The subject-matter of this action is a claim for annulment, in part, of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark (OJ 2011 L 340, p. 1; ‘the contested decision’), in that it finds that those measures, although amounting to State aid, are nevertheless compatible with the internal market, within the meaning of Article 106(2) TFEU. The action has been brought by Viasat Broadcasting UK Ltd (‘the applicant’ or ‘Viasat’), which is a commercial broadcasting company active on the Danish market and a direct competitor of the Danish broadcasting company TV2/Danmark A/S (‘TV2 A/S’).
2 TV2 A/S was created in order to replace, for accounting and tax purposes as of 1 January 2003, the autonomous State undertaking TV2/Danmark (‘TV2’), established in 1986, by the Lov No 335 om ændring af lov om radio-og fjernsynsvirksomhed of 4 June 1986 (Law amending the Law on Broadcasting Services). TV2 A/S is, as was its predecessor TV2, the second public television station in Denmark, the first being Danmarks Radio (‘DR’).
3 TV2 A/S, like, previously, TV2, has a public-service mission to produce and broadcast national and regional television programmes. These may be broadcast by means of radio equipment, in particular, satellite or cable systems. Rules governing the public-service obligations of TV2 A/S and TV2 are laid down by the Danish Minister for Culture.
4 Apart from the public broadcasters, commercial television broadcasters operate on the nationwide television broadcasting market in Denmark. These include, first, the applicant and, second, the group created from the companies SBS TV A/S and SBS Danish Television Ltd (‘SBS’).
5 TV2 was set up with the help of an interest-bearing State loan and its activities were, like those of DR, to be funded with the help of revenue from the licence fee paid by all Danish television viewers. The Danish legislature decided, however, that, unlike DR, TV2 would also be able to benefit from, in particular, advertising revenue.
6 Following a complaint lodged on 5 April 2000 by SBS Broadcasting AS/TvDanmark, another commercial broadcaster on the Danish market, the system for funding TV2 was examined by the Commission of the European Communities in its Decision 2004/217/EC of 19 May 2004 on measures implemented by Denmark for [TV2] (OJ 2006 L 85, p. 1, corrigendum in OJ 2006 L 368, p. 1; ‘the TV2 I decision’). That decision covered the period from 1995 to 2002 and concerned the following measures: licensing fees, transfers granted from funds used to finance TV2 (TV2 and Radiofonden Funds), sums granted on an ad hoc basis, exemption from corporation tax, exemption from interest and servicing charges on loans granted to TV2 at the time of its formation, the State guarantee for operating loans and favourable terms for payment of fees for nationwide transmission frequencies (taken as a whole, ‘the measures concerned’). Lastly, the Commission’s investigation also concerned the authorisation given to TV2 to broadcast on local networks and the obligation for all owners of communal aerial installations to relay TV2’s public-service programmes through those installations.
7 After examining the measures concerned, the Commission concluded that they constituted State aid within the meaning of Article 87(1) EC (now Article 107(1) TFEU). That conclusion was based on the finding that TV2’s funding system, which sought to compensate it for the cost of providing its public services, failed to meet the second and fourth of the four conditions laid down by the Court of Justice in its judgment of 24 July 2003 in Altmark Trans and Regierungspräsidium Magdeburg, (C‑280/00, ECR, EU:C:2003:415; ‘the judgment in Altmark’, and, as regards the aforementioned conditions, ‘the Altmark conditions’).
8 In addition, the Commission decided that the aid granted between 1995 and 2002 by the Kingdom of Denmark to TV2, in the form of licence fees and the other measures described in the TV2 I decision, was compatible with the internal market under Article 86(2) EC (now Article 106(2) TFEU), with the exception of an amount of 628.2 million Danish Kroner (DKK) which it classified as overcompensation (recital 163 to and Article 1 of the TV2 I decision). It accordingly ordered the Kingdom of Denmark to recover that sum, together with interest, from TV2 A/S (Article 2 of the TV2 I decision), which had in the meantime replaced TV2 (see paragraph 2 above).
9 Given that the recovery of aid referred to in Article 2 of the TV2 I decision rendered TV2 A/S insolvent, the Kingdom of Denmark notified the Commission, by letter of 23 July 2004, of a planned recapitalisation of that company. That plan provided, so far as State-funded measures were concerned, for a capital injection of DKK 440 million, on the one hand, and the conversion into capital of a State loan of DKK 394 million, on the other. By its Decision C(2004) 3632 final of 6 October 2004, in State Aid Case No N 313/2004 relating to the recapitalisation of [TV2 A/S] (OJ 2005 C 172, p. 3; ‘the recapitalisation decision’), the Commission concluded that the two measures planned for TV2 A/S were ‘necessary to rebuild the capital which TV2 [A/S] need[ed], following its conversion into a limited company, to fulfil its public-service mission’ (recital 53 to the recapitalisation decision). Consequently, the Commission decided that any element of State aid that might be connected with the planned recapitalisation of TV2 A/S was compatible with the internal market under Article 86(2) EC (recital 55 to the recapitalisation decision).
10 The TV2 I decision was the subject of four actions for annulment brought, on the one hand, by TV2 A/S (Case T‑309/04) and the Kingdom of Denmark (Case T‑317/04) and, on the other, by the competitors of TV2 A/S, namely the applicant (Case T‑329/04) and SBS (Case T‑336/04).
11 By judgment of 22 October 2008 in TV2/Danmark and Others v Commission (T‑309/04, T‑317/04, T‑329/04 and T‑336/04, ECR, EU:T:2008:457; ‘judgment in TV2 I’), the Court annulled the TV2 I decision. In its judgment, the Court held that the Commission had rightly concluded that TV2’s public-service mission was consistent with the definition of broadcasting services of general economic interest (judgment in TV2 I, EU:T:2008:457, paragraph 124). It also found, however, several instances of illegality vitiating the TV2 I decision, which led, in short, to the annulment of that decision.
12 Thus, first, examining the question whether the measures concerned by the TV2 I decision involved State resources, the Court held that the Commission had failed to state in its decision the reasons for which it took advertising revenue from 1995 and 1996 into consideration, de facto, as State resources (judgment in TV2 I, cited in paragraph 11 above, EU:T:2008:457, paragraphs 160 to 167). Second, the Court found that the Commission’s examination as to whether the second and fourth Altmark conditions had been met was not supported by serious analysis of the legal and economic considerations which governed the setting of the amount of the licence fee income payable to TV2. The TV2 I decision was, in consequence, vitiated by failure to state reasons on that point (judgment in TV2 I, cited in paragraph 11 above, EU:T:2008:457, paragraphs 224 to 233). Third, the Court held that the Commission’s conclusions on the examination of the compatibility of the aid in the light of Article 86(2) EC, in particular on whether or not there had been overcompensation, were also vitiated by a failure to state reasons. According to the Court, that inadequacy of the reasons stated was attributable to the failure to undertake a serious examination of the actual legal and economic conditions which governed the setting of the amount of the licence fee income payable to TV2 during the period under investigation (judgment in TV2 I, cited in paragraph 11 above, EU:T:2008:457, paragraphs 192, 197 to 203).
13 The recapitalisation decision was the subject of two actions for annulment, brought by SBS and by the applicant. By two orders delivered on 24 September 2009, the Court ruled that, in the light of the annulment of the TV2 I decision and the close link between the obligation to recover the aid resulting from that decision and the measures which are the subject of the recapitalisation decision, it was no longer necessary to rule on those cases (orders of 24 September 2009 in SBS TV and SBS Danish Television v Commission, T‑12/05, EU:T:2009:357, and Viasat Broadcasting v Commission, T‑16/05, EU:T:2009:358).
14 Following the annulment of the TV2 I decision, the Commission re-examined the measures concerned. On that occasion, it consulted the Kingdom of Denmark and TV2 A/S and, furthermore, received observations from the third parties.
15 The Commission presented the result of its re-examination of the measures concerned in the contested decision, which is the subject of the present action and of another action brought by TV2 A/S (TV2/Danmark v Commission, T‑674/11), in which the Court has delivered its judgment today.
16 The contested decision concerns the measures granted to TV2 between 1995 and 2002. However, in its analysis, the Commission also took into account the recapitalisation measures taken in 2004 following the TV2 I decision.
17 In the contested decision, the Commission maintained its position as regards the classification of the measures concerned as State aid within the meaning of Article 107(1) TFEU in favour of TV2 (recital 153 to the contested decision). First, it considered that the advertising revenue for 1995 and 1996 constituted State resources (recital 90 to the contested decision) and, second, in determining the existence of a selective advantage, it concluded that the measures concerned did not meet the second and fourth Altmark conditions (recital 153 to the contested decision). However, whereas in the TV2 I decision it had concluded that the sum of DKK 628.2 million was overcompensation incompatible with Article 86(2) EC, in the contested decision the Commission took the view that that sum was a capital buffer appropriate for TV2 A/S (recital 233 to the contested decision). In the operative part of the contested decision, it therefore declared as follows:
‘Article 1
The measures implemented by Denmark in favour of [TV2] between 1995 and 2002 in the form of the licence fee resources and other measures discussed in this Decision are compatible with the internal market within the meaning of Article 106(2) [TFEU].’
18 Finally, it should be noted that the Kingdom of Denmark took measures seeking to rescue and restructure TV2 A/S. Accordingly, first, on 16 June 2008, it notified draft rescue aid in the form of a credit facility, intended for TV2 A/S. That aid was approved by the Commission in Decision C(2008) 4224 final of 4 August 2008 in Case No 287/08, concerning rescue aid granted to TV2 A/S (OJ 2009 C 9, p. 1). The Commission’s decision was the subject of an action by Viasat. By order of 22 March 2012, the Court, having established that the aid approved by the decision at issue had been repaid in full, decided that the action had become devoid of purpose and that there was no longer any need to adjudicate on it (order of 22 March 2012 in Viasat Broadcasting UK v Commission, T‑114/09, EU:T:2012:144).
19 Second, on 4 February 2009, the Kingdom of Denmark notified the restructuring plan for TV2 A/S to the Commission. In its Decision 2012/109/EU of 20 April 2011 concerning State aid C 19/09 (ex N 64/09) which Denmark intends to implement regarding the restructuring of TV2 A/S (OJ 2012 L 50, p. 21), the Commission considered that restructuring plan to be compatible with the internal market for the purposes of Article 107(3)(c) TFEU on certain conditions, one of them being the prohibition of paying the aid measures provided for by that plan, because the situation of the recipient company had improved. That decision was the subject of an action for annulment brought by Viasat. As Viasat had withdrawn from its action, the case was removed from the Court’s register by order of 10 December 2012 in Viasat Broadcasting UK v Commission (T‑210/12, EU:T:2012:660).
Procedure and forms of order sought
20 By application lodged at the Court Registry on 14 March 2012, the applicant brought the present action.
21 By document lodged at the Court Registry on 12 June 2012, the Kingdom of Denmark sought leave to intervene, in the present case, in support of the form of order sought by the Commission.
22 By document lodged at the Court Registry on 29 June 2012, TV2 A/S sought leave to intervene, in the present case, in support of the form of order sought by the Commission.
23 By orders of 12 September 2012, the President of the Third Chamber of the Court granted those requests.
24 TV2 A/S lodged a statement in intervention on 30 November 2012. On the same day, the Kingdom of Denmark submitted its statement in intervention.
25 The applicant submitted its written observations on the statements in intervention on 19 March 2013. The Commission did not submit written observations on the statements in intervention.
26 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned, as President, to the Eighth Chamber, to which the present case was, consequently, assigned.
27 Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure.
28 As a member of the Chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure of the General Court of 2 May 1991.
29 The parties presented oral argument and replied to questions put by the Court at the hearing on 15 January 2015. At the hearing, in response to a question from the Court, the parties adopted a position on the question of a possible disappearance of the subject-matter of the dispute in the present case, should the contested decision be annulled following the action brought in TV2/Danmark v Commission, T‑674/11.
30 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
31 The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
32 The Kingdom of Denmark and TV2 A/S contend that the Court should dismiss the action.
Law
Admissibility
33 Since the applicant was not an addressee of the contested decision, it is necessary to determine whether it has the capacity to bring proceedings in the context of the present action.
34 According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (judgments of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, and 22 December 2008 in British Aggregates v Commission, C‑487/06 P, ECR, EU:C:2008:757, paragraph 26). In the area of State aid, the case-law acknowledges a particular status within the meaning of Plaumann v Commission (EU:C:1963:17), in particular, for the applicant whose market position would be substantially affected by the aid to which the decision at issue relates (judgment in British Aggregates v Commission, EU:C:2008:757, paragraph 30).
35 In the present case, the contested decision concerns the measures which, in the years 1995 to 2002, constituted virtually all of TV2’s funding. It is evident from the file before the Court that TV2 was the largest player and the applicant’s main direct competitor on the Danish market for television advertising and on the Danish wholesale market on which broadcasters offer their channels to distributors. It is therefore necessary to take the view that, in the present case, the applicant’s position on the market is substantially affected by the aid which forms the subject-matter of the contested decision, within the meaning of the case-law cited in paragraph 34 above.
36 In the light of the foregoing, and in the light of the fact that the contested decision concerns State aid already paid and considered to be compatible with the internal market, the action must be considered to be admissible.
Substance
37 By the present action, the applicant disputes the conclusion in the contested decision that the State aid granted to TV2 was compatible with the internal market.
38 In that regard, it should be noted that, in recitals 155 to 159 to the contested decision, the Commission referred, as the framework for the assessment of the compatibility of the measures concerned with the internal market, to Article 106(2) TFEU and to its Communication of 15 November 2001 on the application of State aid rules to public-service broadcasting (OJ 2001 C 320, p. 5; ‘the 2001 Broadcasting Communication’), which established the principles and methods which it intended to apply in order to ensure compliance with the conditions set out in Article 106(2) TFEU.
39 On 2 July 2009 the Commission adopted a new Communication on the application of State aid rules to public-service broadcasting (OJ 2009 C 257, p. 1; ‘the 2009 Broadcasting Communication’). However, that latter measure specifies, in paragraph 100, that the Commission will apply the 2001 Broadcasting Communication to non-notified aid granted before its publication in the Official Journal of the European Union, such as the aid in dispute.
40 In the section of the contested decision dealing with the compatibility of the measures concerned with the internal market, the Commission took the view, first of all, that the definition of services of general economic interest which were to be provided by TV2 was broad but that it satisfied the requirements of Article 106(2) TFEU, read in the light of the interpretative provisions of that article included in the Protocol on the system of public broadcasting in Member States annexed to the FEU Treaty, known as the Amsterdam Protocol (recitals 171 and 172 to the contested decision). Next, the Commission considered that the Lov om radio-og fjernsynsvirksomhed (Broadcasting Law) formally assigned to TV2 solely a public-service television broadcasting mission. However, according to the Commission, the launch of any additional activity by TV2 would require a new remit to comply with Article 106(2) TFEU (recitals 174 and 175 to the contested decision). Finally, the Commission examined the proportionality of the State aid granted to TV2 by focusing its examination on two aspects: first, it calculated the net cost of the public-service mission entrusted to TV2 and determined whether or not that cost had been subject to overcompensation; second, it analysed TV2’s conduct on the advertising market, in order to determine whether or not TV2 charged artificially low prices for its advertising to the detriment of its competitors. The Commission concluded that the measures concerned were compatible with the internal market.
41 The applicant disputes that assessment of the compatibility of the measures concerned with the internal market in the light of Article 106(2) TFEU, from a precisely defined methodological perspective. The applicant maintains, in fact, that, when the Commission applied Article 106(2) TFEU, the terms of that provision required that the institution should also take into account the second and fourth Altmark conditions to determine whether the competition rules laid down under the Treaty would have impeded the fulfilment of TV2’s public-service mission and whether the aid affected trade to an extent contrary to the EU interest.
42 The applicant does not raise any other error allegedly committed by the Commission in its assessment. In particular, it does not claim that the analysis of the compatibility of the measures concerned with the internal market which the Commission carried out in the light of the 2001 Broadcasting Communication is vitiated by an error of assessment.
43 The action comprises two pleas in law by which the applicant submits, first, that the Commission erred in law by assessing the compatibility of the measures concerned with the internal market under Article 106(2) TFEU, without taking account of the second and fourth Altmark conditions, and, second, that the Commission did not give reasons why Article 106(2) TFEU applied in that case although the second and fourth Altmark conditions were not satisfied, which constitutes an infringement of Article 296 TFEU.
44 It is necessary, at the outset, to note the direct and close link between the present action and the action brought by TV2 A/S, successor to the recipient of the measures concerned, in TV2/Danmark v Commission, T‑674/11, in which the applicant has intervened in support of the form of order sought by Commission. TV2 A/S’s action seeks annulment of the contested decision in that the Commission, having found that the measures concerned did not satisfy the second and fourth Altmark conditions, took the view that the measures constituted State aid and that the aid in question was new.
45 In the judgment delivered today in TV2/Danmark v Commission, T‑674/11, the Court has partially upheld TV2/Danmark’s action and has annulled the contested decision, in that the Commission considered that the advertising revenue for 1995 and 1996 paid to TV2/Danmark through the TV2 Fund constituted State aid. Following that annulment, the present action has become devoid of purpose, in so far as it seeks the annulment of the contested decision in that it classified the advertising revenue from 1995 and 1996 received through the TV2 Fund as being State aid that was compatible with the internal market. Indeed, as the Court has held in its abovementioned judgment, the transfer of that revenue did not even constitute State aid, with the result that the question of the compatibility of such aid with the internal market does not arise. However, since the applicant puts forward the same pleas in law and arguments with regard to all the measures classified as aid compatible with the internal market in the contested decision, all of those pleas and arguments must, in any event, be examined by having regard to the remainder of the contested decision.
46 Moreover, it should also be noted that in its judgment delivered today in TV2/Danmark v Commission, T‑674/11 (paragraph 88 et seq.), the Court has concluded that it was following an error of law that the Commission had concluded, in the contested decision, that the second Altmark condition was not satisfied in the case. It did not, however, rule that that conclusion justified annulment of the contested decision, inasmuch as it took the view that the Commission’s conclusion that the fourth Altmark condition was not satisfied in the case was not vitiated by any error. Indeed, that latter conclusion was, in itself, sufficient to justify the finding that the measures concerned (with the exception of that mentioned in paragraph 45 above) constituted State aid.
47 Since, in its reasoning, the applicant does not distinguish between the second and fourth Altmark conditions, but claims, in respect of those conditions, that the fact that they were not satisfied should have been taken into account by the Commission when assessing the compatibility with the internal market of the State aid in dispute, the Court’s finding referred to in paragraph 46 above does not have the effect of rendering unnecessary the examination of one or other of the pleas relied on by the applicant in support of its action.
The first plea in law, alleging infringement of Article 106(2) TFEU
48 By its first plea in law, the applicant submits, in essence, that the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415) necessarily affects the way in which the Commission must assess the compatibility of aid with the internal market under Article 106(2) TFEU.
49 The applicant claims, in particular, that Article 106(2) TFEU must be interpreted strictly and be applied only when the rules of the Treaty, in particular Article 107 TFEU, ‘obstruct’ fulfilment of the public-service mission concerned. Besides, in accordance with its wording, Article 106(2) TFEU can be applied only when its application is not contrary to the interests of the European Union. Finally, according to the applicant, the second and fourth Altmark conditions are part of Article 107(1) TFEU, in that it defines the concept of State aid. Thus, the applicant criticises the Commission on the ground that it did not examine, in the contested decision, whether the application of the second and fourth Altmark conditions would have ‘obstructed the performance’ of the public-service mission or would have ‘affected trade contrary to the interests of the Union’.
50 Under Article 106(2) TFEU, undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly are to be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the European Union.
51 By the competition rules referred to in Article 106(2) TFEU, it is necessary to understand, in particular, the prohibition on providing undertakings with State aid, arising from Article 107(1) TFEU, which provides that, save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, to be incompatible with the internal market.
52 The arguments put forward by the applicant raise, in essence, the question of the relationship between, on the one hand, the Altmark conditions and, on the other, the conditions under which State aid granted to an undertaking entrusted with managing services of general economic interest may be considered to be compatible with the internal market, in the light of Article 106(2) TFEU.
53 In this regard, it should be borne in mind that the examination of the compatibility of State aid with the internal market presupposes that the measure under consideration is in the nature of aid. It is not apparent either from Article 106(2) TFEU or from any other provision that, in all cases where the State uses its financial resources to ensure the provision of a service of general economic interest, it is granting State aid to the undertaking which provides that service.
54 According to consistent case-law, classification as State aid requires that all the conditions set out in Article 107(1) TFEU be fulfilled. It should be borne in mind that that article sets out the following conditions: first, there must 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 an advantage on the recipient; fourth, it must distort or threaten to distort competition (see judgment in Altmark, cited in paragraph 7 above, EU:C:2003:415, paragraphs 74 and 75 and the case-law cited).
55 As regards, in particular, the third of those conditions, to the effect that the intervention at issue must confer an advantage on its recipient, it has to be stated that, as the Court of Justice has reiterated in the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415, paragraph 84 and the case-law cited), 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 aid.
56 It follows that, when the State, in order to ensure the provision of a service of general economic interest, provides the undertaking furnishing that service with financial consideration which corresponds to the price of that service under normal market conditions, this does not constitute an advantage which the undertaking in question would not have obtained under normal market conditions. Consequently, in such a situation, it is not even a question of State aid, as one of the essential conditions for classifying the measure at issue in this way is lacking.
57 It is precisely the question as to whether a service of general economic interest is provided under normal market conditions that the Altmark conditions seek to answer.
58 Those conditions are the following: first, the recipient undertaking must actually have public-service obligations to discharge, and the obligations must be clearly defined; second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner; third, the compensation must not exceed what is necessary to cover all or part of the costs incurred in discharging the public-service obligations, taking into account the relevant revenue and a reasonable profit for discharging those obligations; fourth, where the undertaking which is to discharge public-service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public-service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit (judgment in Altmark, cited in paragraph 7 above, EU:C:2003:415, paragraphs 89 to 93).
59 As is clear from paragraph 94 of the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), to the extent to which all of those conditions are satisfied, it is not even a question of State aid, in the sense that the undertaking concerned does not receive an advantage which it would not have obtained under normal market conditions.
60 By contrast, as has already been noted, the classification of a measure as aid compatible with the internal market under Article 106(2) TFEU is based on the premiss that the measure in question constitutes aid. In other words, in the case of an undertaking which provides a service of general economic interest, such a classification necessarily presupposes that the undertaking in question obtains, in return for providing that service, an advantage which it would not have obtained under normal market conditions.
61 As regards the application of Article 106(2) TFEU, it should be borne in mind that settled case-law (see judgment of 26 June 2008 in SIC v Commission, T‑442/03, ECR, EU:T:2008:228, paragraph 144 and the case-law cited) has identified three conditions which must be satisfied in order for State aid granted as compensation for discharging public-service obligations to be regarded as compatible with the internal market. The first condition, relating to the definition of public service, requires that the service at issue actually be a service of general economic interest and be clearly defined as such by the Member State. The second condition, relating to the public-service mandate, requires that the recipient undertaking be explicitly entrusted by the Member State with the provision of the public service in question. Finally, the third condition is based on the concept of proportionality. Under that condition, the financing of an undertaking entrusted with public-service obligations must be considered to be compatible with the internal market in so far as the application of the competition rules of the FEU Treaty — in this case, the prohibition of State aid — would obstruct the performance of the particular tasks assigned to that undertaking, and the exemption from the competition rules should not affect the development of trade to an extent that would be contrary to the interests of the European Union.
62 In several cases in which the Court has delivered judgment, the parties have noted a certain similarity between the conditions for the application of Article 106(2) TFEU and some of the conditions set out by the Court of Justice in the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415). This concerns, inter alia, the cases which gave rise to the judgments of 12 February 2008 in BUPA and Others v Commission (T‑289/03, ECR, EU:T:2008:29, paragraphs 160, 162 and 224); SIC v Commission, cited in paragraph 61 above (EU:T:2008:228, paragraphs 134 to 136); 11 March 2009 in TF1 v Commission (T‑354/05, ECR, EU:T:2009:66, paragraphs 116 to 118); 1 July 2010 in M6 v Commission (T‑568/08 and T‑573/08, ECR, EU:T:2010:272, paragraph 128); 7 November 2012 in CBI v Commission (T‑137/10, ECR, EU:T:2012:584); and 16 October 2013 in TF1 v Commission (T‑275/11, EU:T:2013:535, paragraph 122).
63 However, it cannot be forgotten that, even if the conditions for classifying a measure as aid compatible with the internal market are somewhat similar to the conditions set out in Altmark, cited in paragraph 7 above (EU:C:2003:415), account must be taken of the fact that, in the case of the application of Article 106(2) TFEU, what is involved is providing a response to a fundamentally different question, which already presupposes an affirmative answer to the question concerned by the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), which is distinct and is upstream of the question of the compatibility of the aid at issue with the internal market.
64 It is in light of those general considerations that the various arguments put forward by the applicant must be examined.
65 The applicant puts forward several reasons why, in its view, the second and fourth Altmark conditions must necessarily be taken into account by the Commission when assessing the compatibility with the internal market, under Article 106(2) TFEU, of a measure which has been classified as State aid on the basis of failure to comply with those two conditions.
66 As regards the second Altmark condition, first, the applicant states that, in order for Article 106(2) TFEU to be satisfied, the Commission requires compliance with several conditions which are purely formal, such as a precise definition of the public-service mandate. If such formal requirements are necessary to satisfy that provision, it seems logical, according to the applicant, that that provision should also include the requirement for Member States to establish in advance, in an objective and transparent manner, the parameters for calculating the public-service compensation.
67 Secondly, the applicant states that the second Altmark condition is already included in the Commission’s communications and decisions on the application of Article 106(2) TFEU. In this regard, it refers to the Commission document entitled ‘Community framework for State aid in the form of public-service compensation’ from 2005 (OJ 2005 C 297, p. 4; ‘the 2005 SGEI Communication’) and to Commission Decision 2005/842/EC of 28 November 2005 on the application of Article [106](2) [TFEU] to State aid in the form of public-service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2005 L 312, p. 67; ‘the 2005 SGEI Decision’), and to two measures which have repealed and replaced the two measures referred to above, namely, the Communication from the Commission on the European Union framework for State aid in the form of public-service compensation (2011) (OJ 2012 C 8, p. 15; ‘the 2011 SGEI Communication’) and Commission Decision 2012/21/EU of 20 December 2011 on the application of Article 106(2) TFEU to State aid in the form of public-service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ 2012 L 7, p. 3; ‘the 2011 SGEI Decision’). The applicant claims that those documents provide that, in order for Article 106(2) TFEU to apply, the measure granting the public-service mandate must indicate the parameters for calculating, monitoring and reviewing compensation, and the arrangements for repaying any overcompensation and the means to avoid such overcompensation.
68 Thirdly, the applicant states that the 2009 Broadcasting Communication contains, in paragraph 51, a similar requirement to the second Altmark condition. That paragraph states, in fact, that, in order to be compatible with Article 106(2) TFEU, the entrustment act must set out the conditions for providing the compensation and the arrangements for avoiding any repayment of overcompensation.
69 Finally, fourthly, according to the applicant, although the contested decision was adopted on the basis of the 2001 Broadcasting Communication, there is no compelling reason preventing the Commission from applying in the present case the interpretation of Article 106(2) TFEU which it used in the 2005 and 2011 SGEI Communications, the 2005 and 2011 SGEI Decisions and the 2009 Broadcasting Communication.
70 Moreover, as regards the impact of the fourth Altmark condition on the assessment of the compatibility of the aid with the internal market under Article 106(2) TFEU, the applicant notes, first of all, that the broad definition of public service carries the risk that the compensation of public service may be used in fact as rescue aid and operating aid. In order to avoid that risk and to ensure a fair balance between the Member States’ broad discretion in defining and assigning public-service missions, on the one hand, and the protection of competition in the market, on the other, the Commission could use the requirement of efficiency stemming from the fourth Altmark condition when applying Article 106(2) TFEU. Next, the applicant states that the Court’s case-law to the effect that the efficiency criterion is irrelevant to the examination of the compatibility of aid with the internal market was made on the basis of case-law prior to the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), and is, in any event, open to criticism. In addition, it submits that the Commission itself recognises the importance of the efficiency criterion in the 2011 SGEI Communication and in a 2011 Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Reform of the EU State Aid Rules on Services of General Economic Interest (COM(2011) 146 final). Finally, the applicant submits that it follows from the case-law of the Court of Justice on Articles 49 TFEU and 56 TFEU that the principles of equal treatment and transparency preclude a public authority from assigning a public-service concession to a company without a competitive process.
71 The applicant concludes from the foregoing that the second and fourth Altmark conditions are part of the compatibility test of State aid with the internal market established by Article 106(2) TFEU. Consequently, those two conditions must necessarily affect the way in which the Commission applies the compatibility criterion under Article 106(2) TFEU.
72 In conclusion, the applicant submits that the contested decision is vitiated by an error of law in that the Commission did not draw the necessary consequences from the finding that the public-service compensation paid to TV2 does not satisfy the second and fourth Altmark conditions.
73 It is clear that, although the applicant puts forward a number of reasons as to why the second and fourth Altmark conditions should necessarily influence the assessment of compatibility with the internal market, under Article 106(2) TFEU, of a measure which has been classified as State aid on account of failure to comply with those two conditions, it is careful not to specify the nature and extent of that alleged influence.
74 However, in the light of all the considerations presented by the applicant in its pleadings, it is necessary to take the view that, by its first plea in law, it claims, in essence, that the contested decision is vitiated by an error of law, in that the Commission considered the measures in question to be compatible with the internal market under Article 106(2) TFEU, even though those measures do not satisfy the second and fourth Altmark conditions.
75 Such a plea cannot be accepted.
76 In that regard, in the first place, it is clear from the case-law that the fact that the measures concerned do not satisfy the second and fourth Altmark conditions does not prevent such measures, while classified as State aid, from being regarded as compatible with the internal market under Article 106(2) TFEU.
77 In the judgment in TF1 v Commission, cited in paragraph 62 above (EU:T:2009:66, paragraphs 130 and 140), the Court in particular noted that the result of the unequivocal terms of the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), is that the sole purpose of the four conditions set out in that judgment is the classification of the measure in question as State aid and, more specifically, the determination of the existence of an advantage, and that it is necessary not to confuse those conditions with the conditions for the application of Article 106(2) TFEU, the purpose of which is to determine the compatibility, with the internal market, of a measure constituting State aid.
78 In the same judgment in TF1 v Commission, cited in paragraph 62 above (EU:T:2009:66, paragraphs 132 to 139), the Court took the view that it was clear from the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415, paragraph 105), that Article 106(2) TFEU continued to apply in cases in which compensation was to be classified as State aid because it did not satisfy the Altmark conditions. The Court also noted that the case-law subsequent to the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), had in no way excluded the application of Article 106(2) TFEU to compensation paid to undertakings entrusted with public-service obligations, which was classified as State aid on the ground that it did not satisfy the Altmark conditions.
79 The applicant states that it is not asking the Court to depart from the position adopted in the judgment in TF1 v Commission, cited in paragraph 62 above (EU:T:2009:66). It states, however, that in that judgment the Court did not answer the question of whether the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), in any way affected the examination to be carried out under Article 106(2) TFEU in the case of public-service compensation. Therefore, it argues, that judgment does not preclude the view from being taken that the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), must necessarily affect the way in which the Commission applies the compatibility criterion under Article 106(2) TFEU.
80 In this regard, it should be noted that, although the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), identifies four distinct conditions, those are not totally independent of each other. As regards the last three, there is an internal consistency and, in that sense, a certain degree of interdependence.
81 The establishment of objective and transparent parameters for calculating compensation, as required by the second Altmark condition, is a necessary prerequisite for the purpose of answering the question as to whether or not that compensation exceeds what is necessary to cover all or part of the costs incurred in discharging the public-service obligations, as required by the third Altmark condition. In order to answer the question as to whether the compensation exceeds what is necessary, it must first be determined what is necessary. In order to monitor compliance with the third Altmark condition, objective and transparent parameters must be used, as required by the second Altmark condition.
82 As regards the fourth Altmark condition, this supplements the second Altmark condition. It is not enough that the parameters established for calculating the compensation to be paid to an undertaking entrusted with discharging public-service obligations are objective and transparent, as required by the second Altmark condition. Except where the choice of the undertaking in question is made in the context of a public procurement procedure which would allow for the selection of the tenderer which is capable of providing those services at the lowest cost to the community, the fourth Altmark condition requires that those parameters should be based on the example of a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public-service requirements.
83 Regard must also be had to the purpose of the test which forms the context for the analysis of compliance with the four Altmark conditions, which is to prevent compensation from conferring an economic advantage which may favour the recipient undertaking over competing undertakings (judgment in Altmark, cited in paragraph 7 above, EU:C:2003:415, paragraph 90). Thus, as has already been observed (paragraph 57 above), what has to be determined is whether a service of general economic interest is provided under normal market conditions, in which case the financial compensation paid to the undertaking which provides that service does not constitute an advantage which that undertaking would not have obtained under such conditions and, consequently, does not amount to State aid (paragraph 59 above).
84 So far as concerns the application of Article 106(2) TFEU, it is, admittedly, true that, in its judgment in BUPA and Others v Commission, cited in paragraph 62 above (EU:T:2008:29, paragraph 224), the Court noted that the third Altmark condition broadly coincides with the criterion of proportionality as established by the case-law in the context of the application of that provision.
85 It must, however, be stated that although, in both cases, it is essentially the same criterion which is being applied, the context and the purpose of its application are, in each case, different.
86 In the case of the application of Article 106(2) TFEU, it is no longer a question of determining whether a service of general economic interest is provided under normal market conditions. The application of that provision presupposes the existence of State aid, which means, by definition (see paragraph 83 above), that the service in question is not provided under such conditions.
87 As the Court noted in paragraph 140 of its judgment in M6 v Commission, cited in paragraph 62 above (EU:T:2010:272), what Article 106(2) TFEU seeks to prevent, through the assessment of the proportionality of the aid, is that the operator responsible for the service of general economic interest benefits from funding which exceeds the net costs of the public service. It follows that the question as to whether an undertaking responsible for a broadcasting service of general economic interest may fulfil its public-service obligations at a lower cost is irrelevant for the purpose of assessing the compatibility of the State funding of that service in the light of the EU State aid rules.
88 In other words, the costs of a service of general economic interest to be taken into account when applying Article 106(2) TFEU are the actual costs of the service such that they are, and not as they could have been or ought to be, on the basis of objective and transparent calculation criteria, founded on the example of a typical undertaking which is well run and adequately equipped.
89 In that context, the criterion of proportionality is taken into account to estimate the actual costs of the service of general economic interest if, in the absence of evidence available to the Commission which would allow a precise calculation of those costs, the Commission is obliged to make an estimate. More generally, it is by applying the principle of proportionality that it is appropriate to conclude that aid intended to cover the costs of a service of general economic interest is not compatible with the internal market in so far its level exceeds the actual costs of that service.
90 That is why any failure to comply with the second and fourth Altmark conditions, although relevant to the examination of the question as to whether such a service is provided under normal market conditions, is not relevant to the assessment of the proportionality of the aid in the context of the application of Article 106(2) TFEU. In fact, the applicant’s line of argument leads, ultimately, to requiring that services of general economic interest must always be provided under normal market conditions. If such a requirement were accepted, however, the application of competition rules might obstruct the performance, in law or in fact, of the particular tasks assigned to undertakings entrusted with the operation of services of general economic interest, which Article 106(2) TFEU seeks precisely to prevent (see, to that effect, judgment in M6 v Commission, cited in paragraph 62 above, EU:T:2010:272, paragraph 136).
91 Moreover, such an argument leads to a logical impasse, in so far as it means that, for aid to be declared compatible with the internal market under Article 106(2) TFEU, all the Altmark conditions must be respected, in which case the measure in question will not even constitute aid (judgment in TF1 v Commission, cited in paragraph 62 above, EU:T:2013:535, paragraph 144).
92 Furthermore, in the light of the considerations set out in paragraphs 76 to 91 above, it is necessary to reject, as being irrelevant, the applicant’s arguments based on the wording of the 2005 and 2011 SGEI Communications and the 2005 and 2011 SGEI Decisions. As is clear from the preambles and Articles 1 in the 2005 and 2011 SGEI Decisions, as well as from the final sentence of paragraph 2 of the 2005 SGEI Communication and paragraph 7 of the 2011 SGEI Communication, all those provisions concern the assessment of the compatibility of compensation which, not having satisfied the Altmark conditions, has to be classified as State aid. Therefore, the reference in those provisions to concepts which might appear similar to those used in the formulation of the second or fourth Altmark condition cannot be interpreted as indicating that, when examining the compatibility of compensation which, failing to fulfil the Altmark conditions, has been classified as State aid, the Commission must take account of any failure to comply with those two conditions.
93 Moreover, it should be noted, as the Commission does, that none of those provisions is, in any event, applicable to the compensation paid to TV2. First, as regards the 2005 and 2011 SGEI Communications, these explicitly exclude — the first in paragraph 3 and the second in paragraph 8 — the public-service broadcasting sector from their respective scopes. Second, as regards the 2005 and 2011 SGEI Decisions, the amount of the aid granted to TV2 exceeds the thresholds below which those decisions apply.
94 Similarly, the 2009 Broadcasting Communication is not applicable in the present case (see paragraph 39 above).
95 The text applicable to the assessment of the compatibility of the measures concerned with the internal market under Article 106(2) TFEU in this case is the 2001 Broadcasting Communication. However, that Communication contains no compatibility requirement similar to the second and fourth Altmark conditions. In that regard, it should be noted, as the Commission, the Kingdom of Denmark and TV2 A/S have done, that the applicant has not challenged the validity of the 2001 Communication in the light of higher-ranking legal rules.
96 It should be borne in mind, finally, that, contrary to what the applicant claims, the Commission not only should not have been guided by the provisions of the communications and decisions adopted after 2005, cited by the applicant in the application, but could not even do so.
97 When the Commission has a broad discretion, as is the case with regard to the assessment of the compatibility of State aid with the internal market, it may adopt guidelines on how it will apply the provision concerned to a particular sector or to a particular type of aid.
98 However, it should be pointed out that, in adopting rules of conduct and announcing, through their publication, that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its aforementioned discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (judgment of 11 September 2008 in Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, ECR, EU:C:2008:482, paragraph 60).
99 Finally, with regard to the argument that Articles 49 TFEU and 56 TFEU and the principles of equal treatment and transparency preclude a public authority from assigning a public-service concession to a company without a competitive process, it must be pointed out that the judgment in Altmark, cited in paragraph 7 above (EU:C:2003:415), does not itself preclude a public-service mission from being entrusted to an undertaking without a competitive process. That judgment establishes a method for determining the level of compensation applicable when the choice of the undertaking responsible for the discharge of public-service obligations was, in a specific case, not made in the context of a public procurement procedure. In any event, according to the case-law, Article 106(2) TFEU does not include, among the conditions for its application, a requirement to the effect that the Member State must have followed a competitive tendering procedure for the award of the services of general economic interest (see, to that effect, judgment in SIC v Commission, cited in paragraph 61 above, EU:T:2008:228, paragraphs 145 and 146).
100 It follows from the foregoing that the Commission did not err in law in finding, in the contested decision, that the measures concerned were compatible with the internal market under Article 106(2) TFEU, notwithstanding its conclusion that those same measures did not satisfy the second and fourth Altmark conditions.
101 The first plea in law must therefore be rejected as unfounded.
The second plea in law, alleging failure to state reasons within the meaning of Article 296 TFEU
102 By its second plea, the applicant submits that the contested decision is vitiated by a failure to state reasons in that the Commission did not explain the reasons justifying the approval of aid granted to TV2 under Article 106(2) TFEU, despite the fact that the second and fourth Altmark conditions were not met. It argues that it is clear from recital 159 et seq. to the contested decision that the Commission has in the present case applied only a ‘standard’ test of compatibility based on its 2001 Broadcasting Communication, comprising three stages. By contrast, it did not examine whether derogating from the second and fourth Altmark conditions was consistent with Article 106(2) TFEU and, in particular, whether application of those conditions would necessarily obstruct the performance of the public service.
103 In this regard, suffice it to state that the fact that the contested decision does not mention the role of the second and fourth Altmark conditions in the assessment of the compatibility of the measures concerned with the internal market is not attributable to an error of reasoning on the part of the Commission or to a failure to state reasons vitiating the contested decision, but rather to the fact that that decision applies a different analytical framework from that which favours the applicant.
104 It is, moreover, clear that, in recitals 157 to 270 to the contested decision, the Commission set out detailed reasoning to justify the compatibility of the measures concerned with the internal market in the light of the 2001 Broadcasting Communication and that the applicant does not raise any head of complaint with regard to that reasoning.
105 In those circumstances, it cannot be held that the contested decision is vitiated by a failure to state reasons.
106 The second plea in law must therefore be rejected.
The classification as State aid of the funds allocated to the financing of TV2’s regional channels
107 In the reply, the applicant puts forward arguments by which it seeks to respond to the statements made by the Commission in the defence submitted in TV2/Danmark v Commission, T‑674/11, in which the applicant is intervening in support of the form of order sought by the Commission.
108 The Commission’s statements referred to in paragraph 107 above are designed to respond to the third plea in law in the action brought by TV2 A/S in Case T‑674/11, TV2/Danmark v Commission. By that plea, TV2 A/S claimed that it was apparent from recital 194 to the contested decision that, according to the Commission, revenue generated from the licence fees that TV2 had received, between 1997 and 2002, from the TV2 Fund and which it later transferred to its regional stations constituted State aid in its favour. TV2 A/S maintained that, contrary to what is stated in that recital, TV2 was not the beneficiary of the revenue from the licence fees which it had transferred to its regional stations. TV2, it was argued, in fact acted as a ‘payment channel’ transferring money from the TV2 Fund to the regional stations.
109 In its defence lodged in the case at issue, the Commission maintained that TV2 A/S had misinterpreted recital 194 to the contested decision. The Commission, in that regard, argued that TV2 was not the beneficiary of the funds transferred to its regional stations and, accordingly, accepted the ground put forward in that case by TV2 A/S. According to the Commission, this settled the dispute on that issue.
110 Viasat has distanced itself from the Commission’s observations in its statement in intervention lodged in TV2/Danmark v Commission, T‑674/11. It has nevertheless noted that, intervening in support of the form of order sought by the Commission, it could not challenge the latter’s point of view. It could also not ask the Court to examine the legality of the contested decision as regards the classification of the funds transferred by TV2 to its regional stations, since, following the Commission’s statements, TV2 A/S has asked the Court to dismiss its third plea as being devoid of purpose. That is why the applicant has chosen to set out its arguments in the context of the present case.
111 As to the substance, the applicant submits that the Commission erred in law in stating, in recital 194 to the contested decision, that the funds allocated by TV2 to its regional stations did not constitute State aid. The applicant contends that TV2 was not merely an intermediary through which State resources were forwarded to regional channels, but was an actual beneficiary of those resources.
112 In this regard, it should be borne in mind that, according to Article 44(1)(c), in conjunction with Article 48(2), of the Rules of Procedure of 2 May 1991, the original application must state the subject-matter of the proceedings and a summary of the pleas in law relied on, and that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
113 It is also apparent from the case-law that a plea based on an alleged illegality which was capable of being known and pleaded when the action was commenced cannot be regarded as a plea based on matters of law and fact which have come to light in the course of the proceedings (see, to that effect, judgments of 30 September 1982 in Amylum v Council, 108/81, ECR, EU:C:1982:322, paragraph 25, and 2 March 2010 in Evropaïki Dynamiki v EMSA, T‑70/05, ECR, EU:T:2010:55, paragraph 120).
114 In the present case, it must, first of all, be noted that, in the application, the applicant did not put forward any plea concerning the classification, or lack of classification, as State aid of the funds allocated to TV2 and transferred by it to those regional stations. Consequently, the present plea cannot be regarded as amplifying a plea put forward in the application, but constitutes a new plea, raised in the course of the proceedings. Its admissibility depends, therefore, on whether there are any matters of law or fact which have come to light in the course of the proceedings.
115 The applicant argues, essentially, that the statements on the aid in question, contained in the Commission’s defence in TV2/Danmark v Commission, T‑674/11, constitute an element which has come to light in the course of the proceedings.
116 By those statements, however, the Commission limited itself to setting out its own view as to the interpretation of recital 194 to the contested decision. That recital, as well as the entirety of the contested decision, was known to the applicant when the action was brought and these are clearly not matters which have come to light in the course of proceedings. Therefore, the present plea in law, raised during the proceedings, without the conditions capable of justifying this — as set out in Article 48(2) of the Rules of Procedure of 2 May 1991 — being satisfied, must be rejected as being inadmissible.
117 As all of the pleas in law raised in the action have been rejected, the action, in so far as it retains its purpose (see paragraph 45 above), must be dismissed.
Costs
118 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has essentially been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought to that effect by the Commission.
119 Under Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. The Kingdom of Denmark must for that reason bear its own costs.
120 Account being taken of the fact that TV2 A/S did not formally apply for the applicant to be ordered to pay the costs of the intervention, TV2 A/S must bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Declares that it is unnecessary to adjudicate on the action, in so far as it seeks the annulment of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C 2/03) for TV2/Danmark, in that the Commission found that the advertising revenue from 1995 and 1996 paid to TV2/Danmark A/S by the TV2 Fund amounted to State aid;
2. Dismisses the action as to the remainder;
3. Orders Viasat Broadcasting UK Ltd to bear its own costs and to pay those incurred by the European Commission;
4. Orders the Kingdom of Denmark to bear its own costs;
5. Orders TV2/Danmark to bear its own costs.
Delivered in open court in Luxembourg on 24 September 2015.
[Signatures]