Action brought on 30 August 2013 – Comunidad Autónoma del País Vasco and Itelazpi v Commission

(Case T-462/13)

Language of the case: Spanish

Parties

Applicants: Comunidad Autónoma del País Vasco (Spain) and Itelazpi SA (Bizkaia, Spain) (represented by: J. Buendía Sierra, A. Lamadrid de Pablo, M. Muñoz de Juan and N. Ruiz García, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

declare admissible and well-founded the grounds of annulment relied on in support of the present action;

annul the contested decision, in particular Article 1, in so far as it finds that there is a State aid incompatible with the internal market;

consequently, annul the recovery orders provided for in Articles 3 and 4 of the decision; and

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The decision contested in the present case is the same as that at issue in Case T-461/13, Spain v Commission.

In support of the action, the applicants rely on three pleas in law.

First plea in law, alleging an error of law in classifying the process of digitalisation as State aid.

The applicants claim, in that regard, that the Commission carried out an incorrect analysis of Article 171(1) TFEU, having regard in particular to the case-law in Altmark concerning Services of General Economic Interests (SGEI), and that it was therefore wrong to conclude that there was State aid in the present case.

They add, in that context, that the measures examined in the contested decision were intended solely to ensure transmission of the digital television signal in the so-called ‘Zone II’ area (part of the territory that is not served by commercial operators and in which the population, in the absence of intervention by public authorities, would be deprived of access to television).

Moreover, the applicants observe that the principle of ‘technological neutrality’ may not lead to depriving the Member States of the discretion conferred on them by the Treaties to organise the provision of SGEIs.

In any event, the national authorities have favoured terrestrial technology over satellite technology in Zone II because that option was clearly more logical, economical and effective, taking into account the pre-existing analogue terrestrial network, funded by public funds, which already covered Zone II.

Second plea in law, alleging an error of law when assessing the compatibility of the aid

In the alternative, should it be found that there is a State aid, the applicants argue that that aid should be considered compatible with the internal market in accordance with Articles 106(2) and Article 107(3)(c) TFEU.

Third plea in law, alleging an error on the part of the Commission when assessing the existing aid.

In that regard, the applicants argue, also in the alternative, that in any event, the aid granted in the present case should be regarded as an existing aid. Given that a public television network already existed, it was in fact a simple modification and updating of that network, without any change in its function.