13.8.2011

Official Journal of the European Union

C 238/3

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(Case C-105/11 P)

2011/C 238/04

Language of the case: Dutch

Parties

Appellant: Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, acting as Agents)

Other parties to the proceedings: European Commission, Stichting Nederlandse Publieke Omroep, formerly Nederlandse Omroep Stichting (NOS)

Form of order sought

—Set aside the judgment of the General Court of 16 December 2010 in Joined Cases T-231/06 and T-237/06;

—give judgment itself in this case by annulling Commission Decision 2008/136/EC of 22 June 2006 in so far as the Commission found that an amount of EUR 42 457 million must be deemed to be new State aid and must be recovered as part of a total sum of EUR 76 327 million (plus interest);

—order the Commission to pay the costs, including the costs of the proceedings in the General Court.

Pleas in law and main arguments

By its plea, the appellant submits that the General Court infringed European Union law by proceeding on the basis of an erroneous interpretation of Article 107(1) TFEU and Article 108(1) and (3) TFEU, in conjunction with Article 1(b) of Regulation (EC) No 659/1999, and by failing to give reasons or by giving insufficient reasons for its findings.

The plea is in the following parts:

1.the General Court erred in basing its finding that the transfer constitutes new aid on the fact that Article 109a of the Law on media (Mediawet) was introduced after the entry into force of the Treaty;

2.the General Court erred in basing its finding that the transfer constitutes new aid on the criterion that the aid meets the ‘specific needs’ (of the public broadcaster);

3.the General Court erred in basing its finding that the transfer constitutes new aid on the consideration that the public broadcaster was thereby (particularly) overcompensated. The amount of any overcompensation does not determine whether the transfer constitutes new aid. In any event, the General Court gave insufficient reasons for its finding;

4.the General Court erred in deciding that the source of the transfer is not relevant to the issue whether the transfer constitutes new aid. The General Court thus disregards the distinction between new and existing aid. In any event, the General Court gave insufficient reasons for its finding;

5.the General Court gave insufficient reasons for its finding that the reserves transferred cannot be assumed to come from the annual financing of the public broadcasters and thus from existing aid;

6.the General Court gave insufficient reasons for its finding that the funds transferred come from ad hoc payments and therefore constitute new aid;

7.even if the General Court’s grounds as contested above have to be read in conjunction with each other, they cannot lead to the conclusion that the transfer constitutes new aid.

* Commission Decision 2008/136/EC of 22 June 2006 on the ad hoc financing of Dutch public service broadcasters C 2/2004 (ex NN 170/2003) (OJ 2008 L 49, p. 1).

* Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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