The 2013 decision had concluded that public funding granted by Spain to facilitate the transition from analogue to digital television in remote and less urbanised areas procured a selective advantage to terrestrial platform operators over their competitors using other transmission technologies, in breach of EU State aid rules. The General Court has now confirmed that the Spanish measure favored digital terrestrial technology over other possible technologies (cable, satellite, fibre), in violation of the principle of technological neutrality. These judgments are important because they confirm the Commission's analysis of how Member States can ensure TV coverage in line with EU law in a technologically neutral way.
In 2010, the Commission had opened an in-depth investigation into public funding granted by Spain to operators of the terrestrial television platform for the deployment of the digital terrestrial television network in remote and less urbanised areas representing around 2.5% of the territory. In June 2013, the Commission concluded that the measure selectively favored operators of terrestrial platforms, in breach of the principle of technological neutrality and ordered Spain to recover the undue advantage from the beneficiaries.
Spain (T-461/13), the Basque Country/Itelazpi (T-462/13), Galicia and Retegal (T-463/13 & T-464/13), Catalonia/CTTI (T-465/13), Navarra (T-487/13) and Abertis Telecom/Retevisión (T-541/13) brought actions for annulment of the Commission's June 2013 decision. The General Court has now dismissed the appeals and entirely upheld the Commission's findings.
In particular, the Court held that the Commission was right to consider the measure as State aid in the meaning of the EU rules, as Spain had adduced no evidence that the DTT operators were entrusted with discharging public service obligations. Moreover, the Court confirmed that the Commission was correct in holding that the aid was incompatible with the internal market, in particular as it did not respect the principle of technological neutrality. None of the studies presented by the Spanish authorities provided sufficient evidence that terrestrial platforms were superior to satellite platforms.
Background of the cases:
In 2005, Spain decided to subsidise the transition to DTT in certain remote and less urbanized areas (referred to as Area II). The public financing also included aid for the operation and maintenance of the DTT infrastructure. However, those subsidies went exclusively to operators of terrestrial transmission technology. Spain did not notify this project to the Commission.
Following a complaint from a privately owned satellite platform operator SES Astra in 2010 the Commission opened an in-depth investigation into the public financing of the DTT infrastructure. The investigation found that the measure funded the digitisation of television exclusively by the digital terrestrial technology. By contrast, alternative transmission platforms, such as satellite, cable or fibre, could not effectively benefit from those subsidies although these technologies would be available and suitable to cover the territory with digital signals. Today, many commercial TV channels are already transmitted via, for instance, the satellite platform.
On 19 June 2013 the Commission concluded that the 260 million EUR scheme to finance the digitisation and extension of the terrestrial television network in remote and less urbanised areas of Spain was incompatible with EU State aid rules. The operators of the DTT platform received a selective advantage for the extension of coverage organised by the Spanish autonomous communities over their competitors that use other technologies. The Decision covers all Spanish autonomous communities, with the exception of Castilla-La Mancha.
The Decision ordered full repayment of aid granted for the extension of coverage of DTT (for the years 2008 and 2009) and for operation and maintenance of the DTT networks (from 2008 until the date of the Decision). It also required Spain to suspend any unlawful aid for the future operation and maintenance of the DTT network operators.