EU Court Confirms Decision on Recovery of Spanish State Aid to Digital Terrestrial Television
The EU General Court in Luxembourg confirms the Commission’s decision ordering the recovery of State aid granted by Spain to the operators of the terrestrial television platform. The measures adopted by the Spanish authorities did not respect the principle of technological neutrality. The digitisation of broadcasting can be carried out technically via terrestrial (DTT), satellite or cable platforms or through broadband Internet access. This decision will also have implications for state aid regarding digitisation of radio (DAB etc).
Between 2005 and 2009 the Spanish authorities adopted a series of measures aimed at facilitating the transition from analogue to digital television. The object was to reach 98% coverage of the Spanish population by the digital terrestrial television service (‘DTT’) which equates to the percentage covered by analogue television in 2007. Since the coverage obligations set for the DTT risked not reaching this level in one area it was necessary to ensure television coverage in that area. The Spanish authorities therefore made public funding available to support the process of DTT in that area.
In June 2013 the Commission, following a complaint from SES Astra (a European satellite operator), adopted a decision 3 by which it declared that the aid accorded to the operators of the terrestrial television platform for the deployment, maintenance and operation of the digital terrestrial television network in Area II to be unlawful and incompatible with the internal market in the whole of Spain, with the exception of the Autonomous Community of Castille-La Mancha. In the same decision the Commission ordered the recovery of the aid from the recipients.
Spain, the Autonomous Communities of the Basque Country, Galicia and Catalonia, as well as a number of digital terrestrial television operators, requested the General Court to annul the Commission’s decision. By the judgment on November 26 the General Court dismisses all the actions and confirms the Commission’s decision.
The General Court finds, first of all, that the Commission did not err in holding that, in the absence of a clear definition of the operation of a terrestrial network as a public service, the measures should be qualified as State aid.
Secondly, according to the General Court, the Commission was correct in holding that the measures at issue could not be considered as State aid compatible with the internal market, in particular since they did not respect the principle of technological neutrality. In that regard the General Court holds that the Commission did not commit any manifest error of assessment in finding that no study presented by the Spanish authorities was capable of justifying the choice of the terrestrial platform since these studies did not provide sufficient evidence of its superiority when compared to a satellite platform.