Case T‑674/11
TV2/Danmark A/S
v
European Commission
(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 — Concept of aid — Judgment in Altmark)
Summary — Judgment of the General Court (Eighth Chamber), 24 September 2015
1. Actions for annulment — Interest in bringing proceedings — Need for an actual and current interest — Assessment at the time when the action was lodged — Action capable of securing a benefit for the applicant — Action by the beneficiary of a State aid directed against the decision of the Commission declaring it compatible with the internal market — Vested and present risk of legal proceedings against the applicant — Admissibility
(Art. 263 TFEU)
2. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment
(Art. 107(1) TFEU)
3. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment — Not possible to derogate from some of the conditions set out in the Altmark judgment
(Art. 107(1) TFEU)
4. State aid — Concept — Undertakings entrusted with the operation of services of general economic interest — Broadcasting sector — Distinction between the Altmark test, designed to determine the existence of aid and the test under Article 106(2) TFEU, enabling the compatibility of aid with the internal market to be established — Relevance of the Protocol on the system of public broadcasting only for assessing the existence of a State aid
(Arts 14 TFEU, 106(2) TFEU and 107(1) TFEU; Protocol No 29 annexed to the EU and FEU Treaties)
5. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment — Less rigorous application of the said conditions — Condition — Absence of competitive and commercial dimension of the beneficiary’s sector of activity
(Art. 107(1) TFEU; Protocol No 29 annexed to the EU and FEU Treaties)
6. Questions referred for a preliminary ruling — Interpretation — Temporal effects of judgments by way of interpretation — Retroactive effect — Limits — Legal certainty
(Arts 107(1) TFEU and 267 TFEU)
7. State aid — Planned aid — Duty of prior notification and provisional suspension of the implementation of the aid — Infringement — No possibility of beneficiary relying on the principles of legal certainty and the protection of legitimate expectations to oppose application of the Altmark conditions
(Arts 107(1) TFEU and 108(3) TFEU)
8. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Second Altmark condition — Examination of the condition requiring the parameters on the basis of which the compensation is calculated to be established in an objective and transparent manner — Account taken of the requirement of efficient management of the public service — Not permissible
(Art. 107(1) TFEU)
9. Actions for annulment — Subject-matter — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Annulment of such a decision — Conditions
(Art. 263 TFEU)
10. 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 — Insufficiency of an analysis of the costs of the undertaking charged with the public-service mission
(Art. 107(1) TFEU)
11. 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 — Burden of proof of the Member State concerned
(Art. 107(1) TFEU)
12. Judicial proceedings — Intervention — Arguments different from those of the party supported — Admissibility — Conditions
(Statute of the Court of Justice, Art. 40, fourth para.; Rules of Procedure of the General Court, Art. 116(3))
13. State aid — Concept — Grant of an advantage to the beneficiaries — Obligation to pay sums to other undertakings via an intermediary acting solely as a paying agency or payment channel — Not included — Obligation on a public service undertaking to pay sums arising from a licence fee intended for undertakings remunerated for their services — Included
(Art. 107(1) TFEU)
14. State aid — Concept — Aid from State resources — Concept of State resources — Legislative measure requiring third parties to use their own resources in a particular way — Not included
(Art. 107(1) TFEU)
15. State aid — Concept — Advantage granted by means of State or State-controlled resources — Scope — Advertising revenue of a public service broadcaster — Not included
(Art. 107(1) TFEU)
16. Actions for annulment — Pleas in law — Pleas that may be raised against a Commission decision on State aid — Pleas not raised in the administrative procedure — Distinction between admissible pleas in law and inadmissible pleas of fact
(Arts 108(2) TFEU and 263 TFEU)
17. State aid — Existing aid and new aid — Aid granted to a new beneficiary — Distinction between aid schemes and individual aids
(Art. 108 TFEU)
18. State aid — Existing aid and new aid — Individual aid granted to a legal entity constituted after the institution of the aid and the accession of the Member State concerned to the Union — Classification as existing aid — Condition
(Art. 108 TFEU)
1. In the context of an action for annulment brought by aid beneficiaries against a Commission decision finding the aid at issue to be entirely compatible with the internal market, or finding one of the financing measures at issue to be compatible with the internal market, the interest in bringing proceedings can result from a genuine risk that the applicants’ legal position will be affected by legal proceedings or where the risk of legal proceedings was vested and present at the date on which the action was brought before the EU judicature.
In that regard, the existence of a ‘genuine’ or ‘vested and present’ risk of legal proceedings against an applicant in receipt of illegal aid compatible with the internal market, first, where such proceedings were already pending before the national courts when the action for annulment was brought before the General Court or where they were brought before those courts before the General Court had ruled on the action for annulment and, second, where the proceedings pending before the national courts, referred to by the applicant, were concerned with the aid that was the subject of the decision being contested before the General Court.
It follows that the beneficiary of an unlawful aid declared compatible with the internal market may have a legitimate and present interest in bringing an action based on the actual classification of the measures concerned as State aid within the meaning of Article 107(1) TFEU and as new aid within the meaning of Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, where it is referred to, by an action by an action by a competitor before a national court, suspended until the delivery of the judgment of the General Court, claiming that it be ordered to pay interest in respect of the period of unlawfulness and to pay compensation for any damage caused to competitors by reason of the unlawful nature of the aid.
(see paras 34, 36-39)
2. See the text of the decision.
(see paras 47-49)
3. In State aid matters, it is clear from the entirely unequivocal terms of the judgment in Altmark, that the purpose of all the four conditions which it laid down is the classification of the measure in question as State aid, and more specifically the determination of the existence of an advantage. State intervention which does not meet one or more of those conditions must therefore be regarded as State aid within the meaning of Article 107(1) TFEU.
In that regard, concerning more particularly the relationship between the third and second Altmark conditions, it seems impossible to state that compensation granted to a recipient undertaking charged with a public-service mission does 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 receipts and a reasonable profit for discharging those obligations, without first knowing the parameters on the basis of which the amount of that compensation was set, which is precisely the purpose of the second Altmark condition.
(see paras 54, 55)
4. It is clear from the wording of Protocol No 29 on the system of public broadcasting in the Member States (the Amsterdam Protocol) that its purpose is to interpret the waiver contained in Article 106(2) TFEU. It is therefore not relevant for the assessment of the applicability of the Altmark criteria, the purpose of which is to establish the existence of State aid and not its compatibility with the internal market. Furthermore, the Amsterdam Protocol cannot be held to set aside the application of the competition rules or to prevent the Commission from examining whether State funding provides an economic advantage to public-service broadcasters on the basis of the criteria laid down by the Court of Justice in the judgment in Altmark. Moreover, even if the relevance of the Amsterdam Protocol for the assessment of the existence of State aid were to be recognised, it would be limited to the first Altmark condition, concerning the definition of public-service obligations.
(see paras 61, 62)
5. In determining the existence of State aid, what may justify a less strict application of the Altmark conditions in a particular case is the absence of a competitive and commercial dimension in the sector in which the recipient of the compensation is active. However, even taking into account the specific nature of the public service broadcasting remit, underlined by the Amsterdam Protocol, the broadcasting sector cannot be regarded as not having a competitive and commercial dimension. The existence of such a dimension is obvious, in particular, where a public broadcaster, being partly funded by its advertising revenue, is active on the television advertising market.
(see para. 70)
6. See the text of the decision.
(see paras 79, 80, 83, 85)
7. The financial consequences for the beneficiary of a measure which has not been notified are not a circumstance that would, in the light of the general principle of legal certainty, justify a temporal limitation of the effects of a judgment in which the Court of Justice interprets Article 107(1) TFEU to mean that the measure concerned is State aid. It follows that the beneficiary of such a measure cannot rely on the negative financial circumstances for it resulting from the application of the Altmark conditions to the measures concerned and the classification of those measures as State aid within the meaning of Article 107(1) TFEU, as interpreted by the judgment in Altmark, in order to request, on the basis of the principle of legal certainty, that those conditions not be applied.
Moreover, the question as to whether it is consistent with the principle of legal certainty to place the recipient of what, at the material time, was considered compensation for the discharge of a public-service mission under an obligation to repay a sum of money resulting from the joint and retroactive application of the judgments concerning the interpretation of Article 107(1) TFEU and Article 108(3) TFEU, delivered several years after that compensation was paid, cannot be settled within the context of a dispute which is concerned with the validity of the decision by which the Commission classified that compensation as State aid. It is for the national court to assess, if necessary after referring questions to the Court of Justice for a preliminary ruling, whether, in the circumstances of the case, the rules relating the obligation to pay interest to the State in respect of the period of unlawfulness and, if appropriate, to pay compensation for any damage caused to competitors by reason of the unlawful nature of the aid are applicable.
(see paras 82, 84)
8. In determining the existence of State aid, the second Altmark condition, requiring that the parameters on the basis of which the compensation is calculated be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings, lays down three requirements which the compensation calculation parameters must satisfy in order to ensure that the calculation is reliable and open to verification by the Commission. Those requirements are that the compensation calculation parameters must be established in advance in accordance with a transparent procedure and that they must be objective by their very nature. In no way does it follow from the judgment in Altmark that, in accordance with its second condition, the compensation calculation parameters must be so designed as to influence or control the level of expenditure incurred by the recipient of that compensation.
An interpretation of the second Altmark condition whereby the compensation calculation parameters must not only be objective and established in advance by means of a transparent procedure, but also ensure that the public service is run efficiently is incompatible with the wording of the second Altmark condition and results in confusion with the fourth condition of that judgment, which concerns that requirement of efficiency.
Therefore, by demanding that the parameters for calculating the compensation payable to the undertaking for carrying out a public service mission be formulated in such a way as to ensure that the public-service mission is discharged efficiently, the Commission errs in law.
(see paras 102-106)
9. See the text of the decision.
(see para. 109)
10. In determining the existence of State aid, as regards examination of the fourth Altmark condition whereby, in the absence of a public procurement procedure for selecting a tenderer capable of discharging the public-service mission at the least cost, the compensation granted must be determined by reference to a typical undertaking that is well run and adequately provided with the necessary means. The search for such an undertaking is intended to optimise the amount of compensation considered necessary to discharge the public-service mission and avoid the high costs of an inefficient undertaking being taken as the reference for calculating the amount of that compensation.
It is therefore not sufficient, to fulfil that condition, for the Member State to say that, given the specific nature of the public-service remit, it is not possible to identify on the market an undertaking similar to the recipient of the compensation in order then to seek to show that the recipient itself is well run and adequately provided within the meaning of that condition.
(see paras 116, 117, 131)
11. In State aid matters, concerning the burden of proof, whilst it is for the Commission to demonstrate the existence of State aid, the Member State concerned is required, under Article 10(2) read in conjunction with Article 2(2) of Regulation No 659/1999, to provide the Commission with all the information necessary in order to enable it to take a decision on the classification of the measure at issue and, if appropriate, its compatibility with the internal market.
Thus there is an obligation on the Member State to demonstrate that, where the undertaking that is to discharge the public-service mission concerned is not chosen in a public procurement procedure, the level of compensation granted to that undertaking has been determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided so as to be able to meet the public-service requirements in question, would have incurred in discharging that mission. If that is not demonstrated, it is conceivable that the compensation granted to the public-service provider may involve an element of State aid.
(see paras124, 126)
12. See the text of the decision.
(see para. 156)
13. In State aid matters, in the case of a sum paid to a party required to transfer that sum in full to a third party, that cannot in principle be an advantage granted to the party which is acting purely as a ‘paying agency’ or ‘payment channel’. In such a case, the sum in question is merely passing through the latter party’s accounts. Any finding to the contrary would be acceptable only if it were demonstrated that by that passage alone an advantage was conferred on the party concerned in the form, for example, of interest for the period in which it was in possession of that sum.
In that regard, where, in order to discharge part of the mission entrusted to it by the legislature, an undertaking must have recourse to the services of other undertakings, which implies that, in return, it is to assume the obligation to pay to those stations an appropriate remuneration for those services, allowing them to provide the services in question, the undertaking charged with the public-service mission must itself take on obligations with regard to the other undertakings, so that its role is not confined to that of a mere channel for payments arising from a licence fee intended for other undertakings. Moreover, the fact that the other undertakings have their own legal personality is irrelevant.
(see paras 159, 171)
14. In State aid matters, advantages which are not granted through State resources are not, in any event, capable of constituting State aid. In that regard, an advantage conferred through State resources is an advantage which, once granted, has a negative effect on State resources.
The simplest form that that negative effect can take is a transfer of resources from the State to the party on whom the advantage is conferred. However, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage conferred on one or more undertakings to be capable of being regarded as State aid. It is possible to conceive an advantage entailing negative effects for State resources that does not involve a transfer of State resources. Such is for example the case of a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom the tax exemption applies in a more favourable financial situation than other taxpayers.
The concept of State resources within the meaning of Article 107(1) TFEU covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the State. Consequently, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources.
Thus, State resources may also consist of resources originating with third parties but which either have been placed at the disposal of the State by their owners voluntarily or have been abandoned by their owners, the State having assumed management of them by virtue of its sovereign powers. However, it cannot be held that resources are under public control and therefore constitute State resources in the above sense simply on the basis that, by legislative action, the State requires a third party to use its own resources in a particular way.
(see paras 190, 195, 196, 198, 201, 208, 209)
15. Advertising revenue of a broadcaster charged with a public-service mission is the financial consideration paid by advertisers for the provision of advertising air time. Accordingly, the source of that revenue is not State resources but private resources, namely those of the advertisers.
As for whether it is permissible to consider those resources, of private origin, to have been controlled by the authorities of the Member State concerned, those resources are not voluntarily placed at the disposal of the State by their owners and neither are they resources which have been abandoned by their owners and of which the State has assumed management. Where the intervention of the Member State concerned consists specifically in determining the proportion of the resources in question arising from advertising revenue which must be passed to that broadcaster and where the competent national authorities are empowered only to set a ceiling on the amount of those resources which would be transferred to the that broadcaster, that power cannot be considered sufficient to conclude that the resources were under public control.
If, however, acting on the instructions of the competent national authorities part of the advertising revenue is withheld and placed at the disposal of those authorities, that part of the advertising revenue would constitute resources of the State. However, there is no reason to consider that the remaining portion of the advertising revenue, which was not withheld, constitutes a State resource.
That conclusion is not called into question by the fact that the Minister of Culture of the Member State concerned may withhold part of the advertising revenue. Such a fact does not mean either that the remainder, which was not withheld, is a State resource or that its transfer to the broadcaster constitutes State aid in favour of the latter. Finally, the absence of any contractual relationship between the advertisers and the broadcaster, or of any influence by the latter on advertising activity, is irrelevant in that respect.
It follows that, in so far as a Commission decision classifies such advertising revenue as State aid in the contested decision, it makes an error of law which, on that point, renders that decision invalid.
(see paras 211, 212, 214, 217, 218, 220)
16. See the text of the decision.
(see paras 229-231)
17. In State aid matters, where an aid is granted to a new beneficiary, different from the beneficiaries of an existing aid, it can only be new aid in the case of that new recipient. In that regard, a distinction must be made between aid schemes on the one hand and individual aid on the other.
(see paras 236-239)
18. In the context of competition law, including for the purpose of applying Article 107(1) TFEU, the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.
Thus, for the purpose of identifying the beneficiary of an existing aid, account must be taken of the economic unit that was the beneficiary of that aid, regardless of any change there may have been in its legal status. Consequently, even individual aid may be regarded as existing aid, even if it was granted to a legal entity established after the aid was introduced and the Member State concerned acceded to the European Union, if it is found that the legal entity in question, though non-existent as such at the time the aid was introduced, was at that time part of the undertaking, that is to say of the economic unit, to which the existing aid was granted.
(see paras 243, 244)