29.1.2011

EN

Official Journal of the European Union

C 30/44

(Case T-533/10)

()

2011/C 30/80

Language of the case: Spanish

Parties

Applicant: DTS Distribuidora de Televisión Digital, SA (Tres Cantos, Madrid, Spain) (represented by: H. Brokelmann and M. Ganino, lawyers)

Defendant: European Commission

Form of order sought

—Annul Commission Decision C(2010) 4925 final of 20 July 2010, and

—order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant in the present proceedings, a satellite pay TV operator, challenges Commission Decision C(2010) 4925 final of 20 July 2010‘on the State aid scheme No C 38/2009 (ex NN 58/2009) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE)’, which declared that that scheme, as amended by Law 8/2009 of 28 August 2009 on financing Corporación de Radio y Televisión Española, was compatible with the common market, without its being necessary to analyse the scheme’s method of financing.

The applicant submits that the Commission was not entitled to authorise the aid scheme in question without analysing the method of financing introduced by the above-mentioned Law and, specifically, the 1,5% tax on the gross operating income of pay-TV broadcasters.

In support of its claims the applicant puts forward the following pleas in law:

—Error of law on the part of the Commission, by authorising the aid which is the subject-matter of the proceedings without analysing its method of financing. In that connection, it is submitted that it is settled case-law that aid cannot be considered separately from the effects of its method of financing if that method forms an integral part of the aid, and that, with regard to the present case, the 1.5 % tax on the gross operating income of pay-TV broadcasters forms an integral part of the aid scheme, which is why the Commission ought to have analysed the scheme and the aid together.

—Infringement of Article 106(2) TFEU, in that the Commission authorised an aid scheme which fails to observe the principle of proportionality, since the taxes financing the scheme involve a serious distortion of competition, in the content acquisitions market and in the downstream viewers’ market, contrary to the common interest.

—Infringement of Articles 49 and 63 TFEU. In the applicant’s submission, the Commission infringed those provisions, in so far as the method of financing the aid authorised restricts freedom of establishment and the free movement of capital, by making it less attractive for pay TV operators and other investors established in other Member States to exercise those freedoms.