delivered on 7 September 2017 (1)

Joined Cases C‑66/16 P to C‑69/16 P and Cases C‑70/16 P and C‑81/16 P

Comunidad Autónoma del País Vasco,

Itelazpi SA (C‑66/16 P),

Comunidad Autónoma de Cataluña,

Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (CTTI) (C‑67/16 P),

Navarra de Servicios y Tecnologías SA (C‑68/16 P),

Cellnex Telecom SA, formerly Abertis Telecom SA, (C‑69/16 P)

Comunidad Autónoma de Galicia,

Redes de Telecomunicación Galegas Retegal SA (C‑70/16 P)

Kingdom of Spain (C‑81/16 P)

(Appeal — State aid — Digital television — Aid for the deployment of digital terrestrial television in remote and less urbanised areas — Subsidy in favour of digital terrestrial television platform operators — Decision declaring the aid measures incompatible in part with the internal market — Concept of State aid — Advantage — Service of general economic interest — Definition — Discretion of the Member States)

Introduction

1.By their appeals, the Comunidad Autónoma del País Vasco (the Autonomous Community of the Basque Country, Spain) and Itelazpi SA (C‑66/16 P), the Comunidad Autónoma de Cataluña (the Autonomous Community of Catalonia, Spain) and the Centre de Telecomunicacions i Tecnologies de la Informació de la Generalitat de Catalunya (CTTI) (C‑67/16 P), Navarra de Servicios y Tecnologías, SA (C‑68/16 P), Cellnex Telecom SA and Retevisión I SA (C‑69/16 P), the Comunidad Autónoma de Galicia (the Autonomous Community of Galicia, Spain) and Redes de Telecomunicación Galegas Retegal, SA (Retegal) (C‑70/16 P) and the Kingdom of Spain (C‑81/16 P) seek to have set aside the judgments of the General Court of the European Union of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900), of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899), of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901) and of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891) (together ‘the judgments under appeal’), whereby the General Court dismissed their actions for annulment of Commission Decision 2014/489/EU of 19 June 2013 relating to State aid SA.28599 ((C 23/2010) (ex NN 36/2010, ex CP 163/2009)) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha) (OJ 2014 L 217, p. 52, ‘the decision at issue’).

2.In accordance with the Court’s request, this Opinion will focus on a common plea in law which is central to the six appeals and requires an interpretation of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the judgment in Altmark’), and of Article 106(2) TFEU.

3.In recitals 119 to 126 and 172 (2) of the decision at issue, the European Commission considered that although the national or regional authorities were to provide a precise definition of a public service or a service of general economic interest (‘SGEI’) and to entrust it to a given undertaking, in accordance with both the judgment in Altmark and Article 106(2) TFEU, the Spanish authorities in question had not precisely defined the operation of a terrestrial broadcasting platform as a public service or an SGEI.

4.The appellants, in the judgments under appeal, brought actions before the General Court between 30 August 2013 and 9 October 2013 for annulment of the decision at issue. Among the pleas raised in support of their respective actions, the appellants disputed the Commission’s analysis in recitals 119 to 126 and 172 (3) of its decision. The General Court dismissed those actions.

5.The plea common to the six appeals seeks clarification of the scope of the first condition in the judgment in Altmark (4) and of one of the conditions laid down in Article 106(2) TFEU, namely the scope of the requirement of a ‘clear’ definition of the public service or SGEI obligations and, moreover, the question of the extent of the judicial review to be carried out in that respect.

Legal context

‘Without prejudice to Article 4 of the Treaty on European Union or to Articles 93, 106 and 107 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. …’

‘Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in the Treaties, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.’

8. Protocol No 26 on services of general interest, annexed to the EU Treaty, in the version resulting from the Treaty of Lisbon, and to the FEU Treaty (‘Protocol No 26’) provides as follows:

‘…

Article 1

The shared values of the Union in respect of services of general economic interest within the meaning of Article 14 of the Treaty on the Functioning of the European Union include in particular:

– the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users;

…

Article 2

The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.’

‘…

The provisions of the Treaties shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting and insofar as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and insofar as such funding does not affect trading conditions and competition in the Union to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account.’

The decision at issue

10.The present appeals concern certain measures implemented by the Spanish authorities in relation to the switch-over from analogue broadcasting to digital broadcasting throughout Spain, apart from the Comunidad Autónoma de Castilla-La-Mancha (the Autonomous Community of Castilla-La Mancha, Spain). That digitisation, which may technically be implemented by means of terrestrial, satellite and cable platforms or through high-speed Internet access, allows more effective use of the radio frequency spectrum.

11.The Kingdom of Spain established a regulatory framework in order to promote the transition from analogue to digital broadcasting, by promulgating, in particular, Ley 10/2005 de Medidas Urgentes para el Impulso de la Televisión Digital Terrestre, de Liberalización de la Televisión por Cable y de Fomento del Pluralismo (Law No 10/2005 on urgent measures for the promotion of digital terrestrial television, liberalisation of Cable TV and support of pluralism), of 14 June 2005 (BOE No 142 of 15 June 2005, p. 20562, ‘Law 10/2005’), and Real Decreto 944/2005 por el que se aprueba el Plan técnico nacional de la televisión digital terrestre (Royal Decree 944/2005 approving the National Technical Plan for digital terrestrial television), of 29 July 2005 (BOE No 181 of 30 July 2005, p. 27006, ‘Royal Decree 944/2005’). Under that Royal Decree, private and public national broadcasters were required to ensure that 96% and 98% of the population, respectively, would receive digital terrestrial television (DTT).

12.In order to allow the switch from analogue television to digital television, the Spanish authorities divided the Spanish territory into three separate areas:

– Area I, which includes 96% of the Spanish population and where, as that area was considered to be commercially profitable, the cost of switching to digital was to be borne by the public and private broadcasters;

– Area II, which includes remote and less urbanised regions representing 2.5% of the Spanish population, where broadcasters, in the absence of commercial interest, had not invested in digitisation, which led the Spanish authorities to put public funding in place;

– Area III, encompassing 1.5% of the Spanish population, where DTT broadcasting was ruled out by the topography, the Spanish authorities’ choice was the satellite platform.

13.In September 2007, the Consejo de Ministros (Council of Ministers, Spain) adopted the National Plan for the Transition to DTT implementing the national technical plan provided for in Royal Decree 944/2005. That plan divided the Spanish territory into 90 technical transition projects and established a deadline for the switch-off of analogue broadcasting for each of those projects. The objective set out in that plan was to achieve coverage of the Spanish population by DTT comparable with the coverage of that population by analogue television in 2007, that is to say, more than 98% of that population and all or virtually all of the population in the Autonomous Communities of the Basque Country, Catalonia and Navarra.

14.In order to achieve the coverage objectives fixed for DTT, the Spanish authorities made provision for the grant of public funding, in particular in order to maintain the terrestrial digitisation process in Area II and more particularly within the Autonomous Communities in that area. (5)

15.On 18 May 2009, the Commission received a complaint from SES Astra SA, intervener at first instance, concerning an alleged State aid scheme which the Spanish authorities had implemented in favour of the switch-over from analogue television to digital television in Area II. According to that party, that measure constituted non-notified aid that resulted in the distortion of competition between the terrestrial and satellite broadcasting platforms.

16.By letter of 29 September 2010, the Commission informed the Kingdom of Spain that it had decided to initiate the procedure laid down in Article 108(2) TFEU in respect of the aid scheme in question for the whole territory of Spain, with the exception of the Autonomous Community of Castilla-La Mancha, for which a separate procedure was opened (‘the decision to initiate the procedure’). By the publication of the decision to initiate the procedure, on 14 December 2010, in the Official Journal of the European Union (OJ 2010 C 337, p. 17), the Commission invited interested parties to submit their observations.

17.After receiving observations from the Spanish Authorities and other interested parties, the Commission adopted the decision at issue, the operative part of which provides as follows:

Article 1

The state aid granted to the operators of the terrestrial television platform for the deployment, maintenance and operation of the digital terrestrial television network in Area II unlawfully put into effect by [the Kingdom of] Spain in breach of Article 108(3) TFEU is incompatible with the internal market, except for the aid which was granted in compliance with the criterion of technological neutrality.

Article 2

Individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it was granted, it met the conditions laid down in a regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 [of 7 May 1998 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid that was applicable at the time the aid was granted, OJ 1998 L 142, p. 1].

Article 3

[The Kingdom of] Spain shall recover the incompatible aid granted under the scheme referred to in Article 1 from the Digital Terrestrial Television operators, whether they received the aid directly or indirectly.

…

Article 4

The recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective.

…

Article 5

This Decision is addressed to the Kingdom of Spain.’

In setting out the reasons for the decision at issue, (6) the Commission considered that the measure at issue should be considered to be State aid within the meaning of Article 107(1) TFEU. (7) It considered that the DTT platform operators were direct beneficiaries of the aid, (8) while the network operators who had participated in the tenders for extension of DTT coverage were indirect beneficiaries of the aid. (9) The Commission considered, in particular, that the advantage of the measure for the latter operators was selective, since such a measure benefited only the broadcasting sector and, in that sector, the measure applied only to undertakings active in the terrestrial platform market. (10)

According to the decision at issue, the Spanish authorities put forward, as their best and only example, the case of the Autonomous Community of the Basque Country, where digitisation was implemented by the public undertaking Itelazpi, in order to support their claim that there was no State aid, in accordance with the criteria laid down by the Court in the judgment in Altmark (11). The Commission considered, however, that the first condition laid down in that judgment, that the recipient undertaking must have a public service mandate and that the related obligations must be clearly defined, was not satisfied. (12) It also considered that the exception in Article 106(2) TFEU could not be invoked. (13)

In that regard, recitals 119 to 126 of the decision at issue, entitled ‘First Altmark condition: Clear definition and assignment of public service obligations’, provide as follows:

‘(119) Spanish law does not declare the operation of a terrestrial network to be a public service. The 1998 [Ley General de Telecomunicaciones (General Law on telecommunications)] (14) states that telecommunications services, including operation of networks supporting radio and television, are services of general economic interest but they do not have the status of public services, which are reserved only for a limited number of telecommunications services. (15) The [General] Law on Telecommunications currently in force (16) maintains the same qualification. The transmission services for the broadcasting of television, i.e. transport of signals through the telecommunications networks, are considered to be telecommunication services and as such are services of general interest but not public service. (17)

(120) In any event, the provisions of the … Telecommunications Law are technology neutral. Article 1 of the Law defines telecommunications as exploitation of networks and the provision of services of electronic communications and associated facilities. Telecommunications is the transmission of signals through any telecom network, and not through the terrestrial network in particular. (18) Moreover, Article 3 of the Law specifies as one of its objectives to encourage, to the extent possible, technological neutrality in regulation.

(121) Although the law in force and applicable at the time of transfer of funds to Itelazpi defined public broadcasting as a public service, according to the Commission it is not possible to extend this definition to the operation of a particular supporting platform. Moreover, where several transmission platforms exist, one particular platform cannot be considered to be “essential” for the transmission of broadcasting signals. It would therefore have constituted a manifest error, if Spanish legislation had declared the use of a particular platform for the transmission of broadcasting signals to be a public service.

(122) It is concluded that under Spanish law the operation of terrestrial networks does not have the status of a public service.

(123) The Basque authorities argue that the assignment of the provision of this service of general economic interest to Itelazpi is explicitly contained in the Conventions concluded between the Basque Government, [Euskadiko Udalen Elkartea, Asociación de Municipios Vascos, EUDEL (Association of Basque Town Councils, EUDEL] and the three Basque Regional Councils.

(124) In the Conventions the Basque administration recognises that values such as universal access to information and plurality of information require the universalisation of free-to-air television and undertakes to safeguard these values by extending the coverage of the state multiplexes. (19) However, no provision of the Conventions actually suggests that the operation of terrestrial network is considered to be a public service. Therefore, the Commission is of the view that the wording of the Conventions is not sufficient to clearly set out the scope of the mission of the public service, and it cannot be argued on that basis that transmission via the terrestrial network is a public service.

(125) As a result, it has not been established that the first Altmark condition has been satisfied.

(126) The criteria laid down in the Altmark judgement are cumulative, i.e. they all have to be fulfilled in order for the measure not to be considered State aid. In the absence of satisfaction of the first criterion, the financing granted to Itelazpi by the Basque Country authorities does not therefore qualify as compensation for the provision of a service of general economic interest.’

Recital 172 of the decision at issue, entitled ‘Article 106(2) TFEU’, provides as follows:

‘The Article 106(2) exception that can apply to State compensation for the costs of providing a public service cannot be invoked [either] in this case in general, [or] in the case of the Basque Country in particular. The Commission considers that the national (or regional) authorities have to define the SGEI clearly and entrust it to a particular undertaking. As assessed in [recitals] 119 to 122, it is considered that the Spanish and Basque authorities did not clearly define the operation of a terrestrial platform as a public service.’

The judgments under appeal

In the cases that gave rise to the judgments of the General Court of 26 November 2015, Comunidad Autónoma del País Vasco and Itelazpi v Commission (T‑462/13, EU:T:2015:902), of 26 November 2015, Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900) and of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), the applicants put forward a plea alleging infringement of Article 107(1) TFEU, in that the Commission had erred in finding the existence of State aid.

That plea was rejected by the General Court as unfounded.

The General Court, in particular, rejected the applicants’ argument that the measure at issue could not be characterised as State aid within the meaning of Article 107(1) TFEU, as no economic advantage had been conferred on the recipients, since the conditions laid down in the judgment in Altmark were satisfied.

In the case that gave rise to the judgment of the General Court of 26 November 2015, Navarra de Servicios y Tecnologías v Commission (T‑487/13, not published, EU:T:2015:899), the applicant put forward a plea alleging, in the alternative, infringement of Article 106(2) TFEU and of Protocol No 29.

That plea was rejected by the General Court as unfounded.

In those four cases, the Court held, in particular, that the Commission had not erred in considering that, in the absence of a clear and precise definition of the service in question as a public service, the first criterion in the judgment in Altmark was not satisfied. (20)

In addition, in the case that gave rise to the judgment of the General Court of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901), the General Court rejected a plea raised in the alternative and alleging infringement of Article 106(2) TFEU. The General Court held, in particular, that the applicants had failed to show that the Commission had been wrong to consider that, in the absence of a clear definition of the service consisting in operating a terrestrial network as a public service, the first condition in the judgment in Altmark was not satisfied. (21)

Last, in the case that gave rise to the judgment of the General Court of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), the General Court rejected a plea alleging infringement of Article 107(1) TFEU. By that plea, the Kingdom of Spain had claimed, in particular, that the measure at issue constituted an SGEI and that the first condition laid down in the judgment in Altmark was satisfied. In paragraph 75 of the judgment of 26 November 2015, Spain v Commission (T‑461/13, EU:T:2015:891), the General Court held that the Commission had not erred in considering that, in the absence of a clear definition of the service consisting in the operation of a terrestrial network as a public service, the first criterion in the judgment in Altmark was not satisfied.

Procedure before the Court

By decision of the Court of 28 March 2017, the Cases Comunidad Autónoma del País Vasco and Itelazpi v Commission (C‑66/16 P), Comunidad Autónoma de Cataluña and CTTI v Commission (C‑67/16 P), Navarra de Servicios y Tecnologías v Commission (C‑68/16 P) and Cellnex Telecom and Retevisión I v Commission (C‑69/16 P) were joined for the purposes of the oral procedure and the judgment.

In those cases, the Autonomous Community of the Basque Country and Itelazpi, the Autonomous Community of Catalonia and CTTI, Navarra de Servicios y Tecnologías, Cellnex Telecom and Retevisión I, SES Astra and the Commission lodged written observations.

In addition, in Case C‑70/16 P, the Autonomous Community of Galicia and Retegal, SES Astra and the Commission lodged written observations. Last, in Case C‑81/16 P, the Kingdom of Spain and the Commission lodged written observations.

At the close of that written procedure, the Court, in accordance with Article 76(2) of the Rules of Procedure of the Court of Justice, considered that it had sufficient information in the six appeals to give a ruling without a hearing.

Arguments of the parties

In Joined Cases C‑66/16 P to C‑69/16 P (22)

34.The present appeals are based on a single plea in law, divided into six parts. As stated in point 2 of this Opinion, I shall focus my conclusions on the first and second parts of the single plea.

35.By the first part of their single plea, the appellants take issue with the General Court for having misapplied the case-law of the Court of Justice and the General Court, according to which the definition of SGEIs by a Member State can be questioned by the Commission only in the event of manifest error. (23)

36.The appellants claim that, in order to endorse the Commission’s assessment, the General Court relied on the single ground that the Spanish authorities’ definition of the SGEI in question was not sufficiently ‘clear and precise’, without also finding that such a definition did not constitute a ‘manifest error’. On the contrary, the General Court does not dispute that there was a market failure or that the service in question was an activity that might be characterised as an SGEI.

37.The General Court thus manifestly exceeded the limit of the review of a manifest error laid down in Article 14 TFEU, Article 106(2) TFEU, Article 107(1) TFEU and Protocol No 26.

38.The Commission contends that the first part of the single plea is ineffective or, in any event, unfounded.

39.It observes that the judgment in Altmark requires that the public authorities entrust the operator concerned with an SGEI by an act of a public authority that clearly defines the obligations in question. (24) In this instance, the General Court, on the basis of the acts submitted to it, concluded that none of them defined the operation of a DTT network in Area II as an SGEI, whether at national or at regional level.

40.Thus, the Commission contends that, before addressing the question of the existence, or the absence, of a manifest error in the definition and the grant of an SGEI, the General Court had to determine whether there was one (or more) acts of a public authority whereby the operator was entrusted with an SGEI, which was not the case here. The General Court cannot therefore be criticised for having misapplied the ‘manifest error’ criterion, since it merely ascertained whether the minimum conditions established for that purpose in the case-law were satisfied.

41.SES Astra is of the view that the first part of the plea is inadmissible and in any event unfounded.

42.It maintains that, by this first part of the plea, the appellants are in reality disputing only a finding of fact made by the Court, which cannot be the subject of an appeal. In its submission, the question whether the first condition laid down in the judgment in Altmark is satisfied is an issue of fact which is to be determined by the General Court, while in such a case the Court of Justice has jurisdiction only to determine whether the General Court distorted the wording of the national provisions at issue, made findings that were manifestly inconsistent with their content and, for the purpose of establishing the content of the national legislation at issue, attributed to all of those particulars a significance which is not appropriate in the light of the other particulars. (25)

43.By the second part of their single plea, the appellants claim that the judgments in question are vitiated by incoherence, insofar as the General Court considered that, in order to come within the broad discretion recognised to the Member States, the choice of a particular technology must be included in the actual definition of the SGEI, (26) whereas it held, moreover, that in defining the TNO operating service as an SGEI, the Spanish authorities must not discriminate against the other platforms. (27)

44.In any event, the appellants maintain that the General Court erred in law in holding that the definition of the SGEI in question was not sufficiently clear and precise in that it did not mention a particular technology. The wide discretion which the Treaty confers on Member States allows them not only to ‘define’ the SGEI but also to ‘provide, commission and organise’ it, as, moreover, the General Court expressly stated in the judgments in question. (28) That discretion derives from Protocol No 26 and from Protocol No 29, and also from the case-law of the Court of Justice and the General Court. (29)

46.Accordingly, the appellants claim that the General Court ought to have required the Commission to examine, in the first place, whether the Member State had made a manifest error in the definition of the SGEI in question, irrespective of whether that definition included an explanation of the actual procedures for the provision of that service. In the second place, the examination ought to have related to whether, in choosing a specific form for the provision of that service, in this instance the terrestrial technology, that Member State had made a manifest error.

47.The Commission contends that the argument on which the second part of the plea is based is ineffective, since it is inconsistent with the General Court’s finding that the Spanish authorities could not rely on the existence of an SGEI in the absence of an award measure, in accordance with EU law, entrusting certain undertakings with the task consisting in providing the service of the operation of the DTT network in Area II. (30)

48.Furthermore, in the Commission’s contention, the wide discretion which the Member States enjoy when defining what they consider to be an SGEI is limited by the obligation to observe the general principles of EU law (31) and the criterion of proportionality. (32) Therefore, as the General Court correctly held, (33) that power is not unlimited and cannot be exercised arbitrarily for the sole purpose of removing a particular sector, such as the telecommunications sector, from the application of the competition rules.

49.SES Astra also contends that the second part of the plea is ineffective, since the national legislation does not clearly define the provision of the terrestrial platform in Area II as an SGEI. Furthermore, insofar as this part of the plea amounts to disputing the findings of fact made by the General Court, it is also inadmissible.

50.In the alternative, SES Astra claims that the appellants misread the judgments in question (35) when they assert that the General Court merely recognised that the Member States have a discretion only with regard to the definition of the SGEI and not with regard to the provision, commissioning or organisation of the SGEI. In addition, the case-law on which the appellants rely in order to justify the margin of discretion which the Member States enjoy when organising the SGEIs (36) is not relevant in the present case. Last, SES Astra contends that, according to a consistent line of decisions of the Court of Justice, the discretion which the Member States enjoy is limited by the need to comply with the general principles of EU law. (37) Thus, when they decide to include a specific technology in the definition of the SGEI, the authorities of the Member States must ensure that they comply with those principles and, in particular, as the General Court held, (38) with the principle of technological neutrality.

In Case C‑70/16 P, Comunidad Autónoma de Galicia, Redes de Telecommunicación Galegas Retegal SA v European Commission

51.The present appeal is based on four pleas in law. As indicated in point 2 above, I shall focus in my Opinion on the first and second parts of the fourth plea.

52.The first part of the fourth plea alleges an error of law consisting in ignoring the discretion which the Member States enjoy when defining an SGEI.

53.In that regard, the appellants claim that the General Court merely excluded, as a matter of principle, the possibility that the operation of a terrestrial digital television network might be defined as a public service. They maintain that the General Court failed to analyse the 12th Additional Provision of Royal Decree 944/2005 for the purposes of determining whether the conditions required by the judgment in Altmark in order to define the support service in Area II as a public service are satisfied. In the appellants’ submission, Royal Decree 944/2005 authorises the territorial administrations to carry out that activity, which, in the absence of that provision, they would be prohibited from doing. That national provision entails, ultimately, the conferral of a genuine public power, in order to provide a public service. They observe that the public service task was subsequently given concrete form in successive acts ‘through: (i) the partnership framework agreement and the subsequent addendum thereto, concluded between the general administration of the State and the Autonomous Community of Galicia in the context of the digitisation process and, next, through (ii) the cooperation agreements entered into between the Autonomous Community of Galicia and the various municipalities in Area II …’

54.The appellants claim that the service as conceived and as provided on the conditions laid down in the 12th Additional Provision of Royal Decree 944/2005 and in the cooperation agreements between administrations is a public service, the provision of which is reserved for the public administrations in Area II and which is therefore, at EU level, an SGEI. They claim that the official acts entrust the public service task to the municipalities, in partnership with the Autonomous Community. They observe that the intervention of the public authorities of Galicia did not consist in creating a network capable of commercial operation, or in operating the network thus created, but in adapting the network of existing analogue centres belonging to the municipalities, in order thus to be able to continue to provide their citizens with the service supporting the television signal on the conditions laid down in the 12th Additional Provision of Royal Decree 944/2005.

55.As to whether the public service obligations are indeed defined in the official acts, the applicants observe that the 12th Additional Provision of Royal Decree 944/2005 states that the service the provision of which is entrusted to the territorial administration is the ‘broadcasting of the digital terrestrial television service to their citizens’. Nor, in their further submission, does the binding and universal nature of the public service task give rise to any doubt in the light of the official acts which entrust the task in question to them.

56.The appellants observe that, according to settled case-law, Member States have a wide discretion to define what they regard as SGEIs and that definition can be questioned by the Commission only in the event of ‘manifest error’. (39) In their submission, the extent of the General Court’s review of the Commission’s assessments must necessarily take that limitation into account. That review must nevertheless ensure respect for certain minimum criteria relating to the presence of an act of the public authority entrusting the operators in question with an SGEI mission, (40) and to the universal and compulsory nature of that mission. (41)

57.The appellants maintain that the General Court exceeded the limits of that review and that manifest errors were made, which led it to conclude that there was no act of a public authority entrusting a public service mission. The General Court thus failed to have regard to, and committed a breach of, the discretion and the margin of appreciation which the Member States enjoy when defining an SGEI.

58.The appellants further observe that a ‘wide discretion of national, regional and local authorities in providing, commissioning and organising’ those services is the formula employed in Protocol No 26, which the General Court in turn employed in paragraph 95 of the judgment of 26 November 2015, Comunidad Autónoma de Galicia and Retegal v Commission (T‑463/13 and T‑464/13, not published, EU:T:2015:901).

59.According to the appellants, the discretion which the Treaty affords to Member States includes both the power to ‘define’ and the power to ‘provide, commission and organise’ those services, which also empowers the national authorities to choose the means whereby the service will be provided, by choosing, in particular, a specific supporting platform and, accordingly, to validly choose the mode of public intervention by the regional and local authorities of Galicia. They maintain in that respect that the recognition, in paragraph 95 of the judgment in question, of the discretion at issue is purely formal, as that power is not reflected, to the degree which it occupies in the Treaty, in its actual application to the present case by the General Court, which distorted it, rendered it devoid of content and ignored it.