Action brought on 22 November 2016 – Netflix International and Netflix v Commission
(Case T-818/16)
Language of the case: English
Parties
Applicants: Netflix International BV (Amsterdam, Netherlands) and Netflix, Inc. (Los Gatos, California, United States) (represented by: C. Alberdingk Thijm, S. van Schaik and S. van Velze, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the Court should:
annul the Commission’s decision of 1 September 2016 declaring an amendment to the German act on measures for the promotion of German cinema in its seventh version compatible with the internal market1 ; and
order the Commission to pay the costs of these proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on six pleas in law.
First plea in law, alleging a violation of the Audiovisual Media Services Directive2 .
The Commission violated Article 13 (1) AVMSD in deciding that the German measure is compatible with this article interpreted in light of the proposed amendment.
The Commission violated Articles 2 (1), 2 (2) and 3 AVMSD in deciding that the German measure does not impinge the Country of Origin Principle.
Second plea in law, alleging a violation of Article 110 TFEU.
The Commission violated Article 110 TFEU in finding that the German measure is not discriminatory to on-demand audiovisual media service providers (“VOD providers”) established outside Germany but targeting German audiences.
Third plea in law, alleging a violation of Article 56 TFEU.
The Commission violated Article 56 TFEU in failing to assess whether the German measure infringes the freedom to provide services, which it does.
Fourth plea in law, alleging a violation of Article 49 TFEU.
The Commission violated Article 49 TFEU in failing to assess whether the German measure infringes the freedom of establishment, which it does.
Fifth plea in law, alleging a violation of Article 107 TFEU.
The Commission violated Article 107 TFEU in finding that the German measure is a form of State Aid that can be justified by a cultural aim and is compatible with the Internal Market.
Sixth plea in law, alleging a violation of essential procedural requirements.
The Commission violated essential procedural requirements in failing to meet the standards of motivation as laid down in Article 296(2) TFEU and of the right to good administration as set out in Article 41 of the European Union Charter of Fundamental Rights (“EUCFR”).
____________1 Commission Decision (EU) 2016/2042 of 1 September 2016 on the aid scheme SA.38418 — 2014/C (ex 2014/N) which Germany is planning to implement for the funding of film production and distribution (notified under document C(2016) 5551) (OJ 2016, L 314, p.63).
2 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (“AVMSD”) (OJ 2010, L 95, p. 1)