Judgment of the General Court (Fifth Chamber) of 15 December 2016 — Abertis Telecom Terrestre and Telecom Castilla-La Mancha v Commission
(Joined Cases T‑37/15 and T‑38/15)
(State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less-urbanised areas of Castilla-La Mancha — Decision declaring the aid incompatible with the internal market — Concept of an undertaking — Economic activity — Advantage — Service of general economic interest — Distortion of competition — Article 107(3)(c) TFEU — New aid)
1. Acts of the institutions — Statement of reasons — Obligation — Scope
(Art. 296 TFEU)
(see para. 44)
2. State aid — Examination by the Commission — Determination of the aid beneficiary — Actual enjoyment
(Art. 107(1) TFEU)
(see para. 51)
3. State aid — Examination by the Commission — Examination of an aid scheme as a whole — Lawfulness
(Arts 107 TFEU and 108 TFEU)
(see para. 69)
4. Competition — EU rules — Addressees — Undertakings — Concept — Exercise of an economic activity — Deployment, maintenance and operation of digital terrestrial television in remote and less-urbanised areas — Existence of a market — No exercise of State prerogatives — Included
(Art. 107(1) TFEU)
(see para. 86-89)
5. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — First condition set out in the Altmark judgment — Clearly defined public service obligations — No recipient undertaking actually entrusted with carrying out public service obligations — Inclusion in the concept — Weakening of the market — Fact not sufficient for a finding that a service of general economic interest exists
(Arts 14 TFEU, 106(2) TFEU and 107 TFEU; Protocol No 26 annexed to the EU and FEU Treaties)
(see paras 96, 103-105, 108, 109)
6. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Determination of services of general economic interest — Distinction between the provision of a broadcasting service and the operation of broadcasting networks — Lawfulness
(Art. 107(1) TFEU; Protocol No 29 annexed to the EU and FEU Treaties)
(see paras 115-117)
7. State aid — Commission decision — Judicial review — Free assessment of the facts and evidence
(Art. 107 TFEU)
(see para. 118)
8. Competition — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Definition of a network operating service as a service of general economic interest — Condition — Compliance with the principle of technological neutrality
(Arts 107(1) TFEU and 108 TFEU)
(see paras 120, 123, 124, 126)
9. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Fourth Altmark condition — Determination of the compensation, where the undertaking not selected by a public contract procedure, on the basis of an analysis of the costs of an average undertaking in the sector concerned
(Art. 107 TFEU)
(see paras 131, 138-145)
10. State aid — Prohibition — Exceptions — Discretion of the Commission — Judicial review
(Art. 107(3) TFEU)
(see paras 160, 161, 169)
11. State aid — Examination by the Commission — Notifications of switch-over to digital — Legal nature — Indicative rules of conduct implying a self-limitation on the Commission’s discretion
(Arts 107(3) TFEU and 108 TFEU; Commission Notices COM(2003) 541 final and COM(2005) 204 final)
(see para. 164)
12. State aid — Administrative procedure — Compatibility of aid with the internal market — Burden of proof on the provider and the potential recipient of the aid
(Art. 4(3) TEU; Art. 107(3) TFEU)
(see para. 199)
13. State aid — Examination by the Commission — Assessment at the date the Commission’s decision was taken
(Art. 107(3) TFEU)
(see para. 208)
14. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Assessment in relation to Article 107(3)(c) TFEU — Taking into account previous practice — Precluded
(Art. 107(3)(c) TFEU)
(see para. 209)
15. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility
(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 76)
(see para. 233)
16. State aid — Existing aid and new aid — Measure amending an existing aid scheme — Classification of the scheme as new aid
(Art. 108(1) TFEU; Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1))
(see paras 246-251)
Re:
| APPLICATION based on Article 263 TFEU and seeking the annulment of Commission Decision C(2014) 6846 final of 1 October 2014 on State aid SA.27408 ((C 24/2010) (ex NN 37/2010, ex CP 19/2009)) implemented by the authorities of Castilla-La Mancha for the deployment of digital terrestrial television in remote and less urbanised areas of Castilla-La Mancha, as amended by Decision C(2015) 7193 final of 20 October 2015 correcting certain errors contained in Decision C(2014) 6846 final. |
Operative part
The Court:
2. | | Orders Abertis Telecom Terrestre, SA and Telecom Castilla-La Mancha, SA to bear their own costs and to pay those incurred by the European Commission and by SES Astra. |