Action brought on 13 August 2004 by TV Danmark A/S and Kanal 5 Denmark Ltd., against the Commission of the European Communities

(Case T-336/04)

(2004/C 262/95)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 August 2004 by TV Danmark A/S, Copenhagen, Denmark and Kanal 5 Denmark Ltd., Hounslow, United Kingdom represented by Mr D. Vandermeersch, Mr K. Karl and Mr H. Peytz, lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments:

In the contested decision, the Commission held that, between 1995 and 2002, the Danish public broadcaster TV2/DANMARK benefited from State aid within the meaning of Article 87(1) EC. The Commission concluded that the aid is compatible with the common market under Article 86(2) EC, except for an overcompensation amounting to 628.2 million DKK which should be repaid by TV 2 / DANMARK A/S.

The applicants request the annulment of Article 1 of the decision to the extent that it held that a part of the aid is compatible with the common market. The applicants submit that in adopting that part of the decision, the Commission has infringed Article 86(2), 87 and 88 EC, as well as the Protocol annexed to the EC Treaty on the system of public broadcasting in the Member States.

The applicants allege that the Commission infringed Articles 87 and 88 EC, when, after having found that the aid was new aid, it nevertheless proceeded to hold that the aid (with the exception of the amount found in overcompensation) was compatible with the common market while it should have established the illegality of the entire aid due to lack of notification.

Furthermore, the applicants submit that the Commission infringed Articles 86(2), 87 and 88 EC and the Protocol, when it held that all of TV2's costs relate to public service obligations and could therefore be funded by the State in spite of the lack of a sufficiently precise definition of the public service obligations of TV2. The Commission also infringed the said articles when it approved the State aid on the basis of the test of whether TV2 attempted ‘to maximise revenues’ and put the burden of proof on the applicants. It committed a manifest error of assessment when it disregarded the evidence of TV2 undercutting prices of a stand alone efficient operator.

The applicants also allege that the Commission infringed Article 86(2) EC and the Protocol when it approved the aid notwithstanding its own finding of doubt as to the pricing behaviour of TV2 and the price level in Denmark. Furthermore, the Commission infringed Article 86(2) EC when it failed to examine whether the net costs of TV2 were proportionate to the public service obligations and when accepting the absence of any, or in the alternative, sufficient Danish public control over TV2's performance of its public service remit.