Joined Cases T-568/08 and T-573/08

Métropole télévision (M6) and Télévision française 1 SA (TF1)

v

European Commission

(State aid – Public service broadcasting – Aid which the French Republic is intending to grant in favour of France Télévisions – Capital funding of EUR 150 million – Decision not to raise objections – Service of general economic interest – Proportionality test – No serious difficulties)

Summary of the Judgment

1.      State aid – Planned aid – Examination by the Commission – Preliminary phase and formal investigation phase – Compatibility of aid with the common market – Difficulties of assessment – Obligation on the Commission to initiate the formal investigation procedure

(Art. 88(2) and (3) EC)

2.      State aid – Concept – Measures designed to offset the costs of public service tasks assumed by an undertaking

(Arts 86(2) EC and 87(1) EC)

3.      Competition – Undertakings entrusted with the operation of services of general economic interest – Subjection to the Treaty rules – Criteria for assessing the compatibility of State financing with the common market – Absence of a condition requiring the operator in charge of the service to operate efficiently

(Art. 86(2) EC)

4.      Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid

(Art. 253 EC)

1.      The formal investigation procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the common market. The Commission may therefore restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is in a position to satisfy itself, after the preliminary examination, that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion, or even if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to obtain all the requisite opinions and to initiate, for that purpose, the procedure provided for in Article 88(2) EC.

The notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content. That investigation must be conducted objectively, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. It follows that judicial review by the Court of First Instance as to the existence of serious difficulties will, by its nature, go beyond consideration of whether or not there has been a manifest error of assessment.

(see paras 60-61)

2.      The sole purpose of the four conditions defined in paragraph 95 of the judgment in Case C‑280/00 Altmark [2003] ECR I‑7747 is to classify the measure in question as State aid, for the purpose of establishing the existence of an obligation to notify that measure to the Commission, in the case of new aid, or to cooperate with the Commission, in the case of existing aid.

The Altmark test, which seeks to determine the existence of aid within the terms of Article 87(1) EC, must not be confused with the test under Article 86(2) EC, which serves to determine whether a measure constituting aid may be regarded as compatible with the common market.

(see paras 129, 131)

3.      In order to determine whether State financing of a public service is compatible with the common market in the light of the Community rules on State aid, the question as to whether an undertaking responsible for a service of general economic interest (SGEI) may fulfil its public-service obligations at lower cost is irrelevant. Article 86(2) EC does not contain any condition that the operator responsible for the public service must be economically efficient in providing that service. What Article 86(2) EC seeks to prevent, though the assessment of the proportionality of the aid, is that the operator responsible for the SGEI should benefit from funding which exceeds the net costs of the public service.

Under Article 86(2) EC, undertakings entrusted with the operation of SGEIs are to be subject 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, subject to the proviso that the development of trade must not be affected to such an extent as would be contrary to the interests of the Community. By allowing, under certain conditions, derogations from the general rules of the Treaty, Article 86(2) EC seeks to reconcile the Member States’ interest in using certain undertakings, in particular in the public sector, as an instrument of economic or social policy with the Community’s interest in ensuring compliance with the rules on competition and preservation of the unity of the common market.

It is not necessary, in order for the conditions governing the application of Article 86(2) EC to be fulfilled, that the financial balance or economic viability of the undertaking entrusted with the operation of a SGEI should be threatened. It is sufficient that, in the absence of the rights at issue, it would not be possible for the undertaking to perform the particular tasks entrusted to it, defined by reference to the obligations and constraints to which it is subject, or that maintenance of those rights is necessary to enable their holder to perform tasks of general economic interest which have been assigned to it under economically acceptable conditions.

Furthermore, in the absence of harmonised Community rules governing the matter, the Commission is not entitled to rule on the extent of public service tasks assigned to the public operator, such as the level of costs linked to that service, the expediency of the political choices made in that regard by the national authorities, or the economic efficiency of the public operator.

(see paras 136-141)

4.      The requirements to be satisfied by the statement of reasons under Article 253 EC depend on the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question as to whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

(see para. 163)