Action brought on 11 March 2011 - Telefónica de España and Telefónica Móviles España v Commission

(Case T-151/11)

Language of the case: Spanish

Parties

Applicants: Telefónica de España Madrid, Spain and Telefónica Móviles España (Madrid, Spain) (represented by: F. González Díaz, F. Salerno, lawyers)

Defendant: European Commission

Form of order sought

annul, in accordance with Article 263 TFEU, the decision of the European Commission of 20 July 2010;

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

The present case is directed against the Commission decision of 20 July 2010, concerning the aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE) (OJ 2010 L 1, p. 9) declaring compatible with the internal market on the basis of Article 106(2) TFEU the new financing model for the public television broadcasting body Corporación de Radio y Televisión Española introduced by Law 8/2009 of 28 August 2009.

In support of the action, the applicant relies on five pleas in law.

1.    First plea in law, alleging an infringement of Article 108(2) TFEU, in so far as the Commission has failed to initiate the procedure provided for in that provision in relation to the separation of the financing from the contested measure as a whole.

2.    Second plea in law, alleging infringement of Article 108 TFEU, in so far as the Commission establishes the separation of the financing of the measure as a whole and incorrectly defines as new aid only the additional financing. Acting in this way, the Commission does not comply with the case-law or the Commission's decision-making practice

3.    Third plea in law, alleging infringement of Article 56 TFEU, since the decision does not provide any explanation as to how it reached the conclusion that the three fiscal measures introduced or amended by Articles 4, 5 and 6 of Law 8/2009 are dissociable from RTVE's current system of financing.

4.    Error of law by dissociating the source of financing of the measure, in so far as the incompatibility of the sources of finance with Community law must necessarily involve its incompatibility with the rules on State aid. The applicant asserts in that regard that the contested decision declares compatible an aid linked to financing that the Commission, in parallel proceedings, has held to be contrary to European Union law.

5.    Infringement of Article 106(2) TFEU and/or Article 256 TFEU on the ground that the statement of reasons is inadequate as regards the absence of overcompensation and the impact of the measure on competition in the internal market. In particular, the decision fails to take account of the fact that RTVE's actual future costs will be less than the costs incurred in the past and declares compatible with the internal market a measure which guarantees protection 'against the fluctuations in revenue in the advertising market', in spite of the fact that there is no commercial risk.

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