[autom.vertaling] De Commissie beslist over de openbare financiering van TV in Italië en Portugal (en)

Today the Commission informed Italy and Portugal that certain ad-hoc measures adopted during the 1990s to support the Italian and Portuguese broadcasters are in line with State aid requirements. This follows an in-depth investigation of the financing systems in these two Member States. This is because the relevant ad-hoc measures were limited to the financing of losses that the public service broadcasters incurred in the fulfilment of their public service mission.

At the same time the Commission's competition department has launched the so-called "appropriate measures" proceedings. DG Competition sent three Member States - Italy, Portugal and Spain letters stating its preliminary view on how financing of public TV can be made more transparent and how sufficient safeguards against excessive public subsidies - that enable cross-subsidisation of commercial activities - can be introduced.

This "appropriate measures" process aims to ensure that public and private broadcasters compete on equal terms in commercial markets such as TV advertising. Funding for public broadcasters should not exceed the strict minimum necessary to ensure the proper execution of the public service mission. It is of course up to the Member States to define the exact scope of this mission.

The Italian case concerning RAI

Apart from the licence fee, Italy, in the period 1992 through 1995, granted two ad hoc aid measures in favour of RAI. These measures did not, however, bring public compensation payments beyond the net additional cost of public service broadcasting. Moreover, no distortion of competition in commercial markets (like advertising) could be established. Therefore, the ad hoc measures are in line with Article 86(2) of the EC Treaty.

The Commission's competition department has also determined that the smooth functioning of competition and the single market requires some amendments to the licence fee mechanism. Therefore, it started the procedure for proposing those amendments by sending a letter to the Italian authorities proposing to put the licence fee into line with the Communication on the application of State aid rules to public service broadcasting.⁽¹⁾ In particular, this initiative wants to make sure that this financing system is transparent and contains safeguards against excessive compensation.

RAI is the Italian public broadcaster and it is charged with a public service namely the public service broadcasting. In 1996 Mediaset and its subsidiary RTI lodged a complaint with the Commission claiming that Italy had granted unlawful State aid in favour of RAI. The complaint focused on the licence fee granted to RAI and on a set of ad hoc measures adopted by the Italian government in the first half of the nineties in favour of RAI (some of which included in the so called "decreto salva RAI"). The licence fee is the ongoing financing system designed to finance the provision of public service broadcasting. According to the complainants, when they were adopted the ad hoc measures granted additional public funds to RAI.

In 1999, the Commission enjoined Italy to provide all the information necessary to assess whether the financing scheme for RAI had to be considered as pre-dating the Treaty of Rome (see IP/99/79). Aid that predates the Treaty of Rome is referred to as existing aid, if it was not substantially altered since that time. New aid is aid that was granted after signature of the EC Treaty.

The Treaty and its implementing rules provide for a different procedure for existing and new aid. The Commission reviews existing aid and can propose to the Member State concerned any appropriate measures required in light of the smooth functioning of the single market. Appropriate measures may require either modification or suppression of the aid, but never the recovery of the sums disbursed. On the other hand, any new aid has to be notified to the Commission prior to its disbursement.

Following this injunction, the Commission considered that the ad hoc measures adopted over the period 1992 to 1995 were new aid and a formal investigation was opened with regard to these measures (see IP/99/532).

On the other hand the licence fee was considered and dealt with in the framework of the procedure for existing aid because this measure already existed before entry into force of the Treaty of Rome and its essential features remained unaltered since that date. Given the intrinsic link between the two sets of measures the ad hoc measures and the licence fee serves to finance the public service mission - the Commission analysed both measures in parallel.

State financing of Portuguese public broadcaster RTP

The Commission's investigation of nine ad hoc measures revealed that these measures are to be regarded as an alternative means of financing the public service cost of RTP on top of the system of annual compensations. Moreover, the ad-hoc aids did not exceed the net public service costs (taking into account the advantage from the annual compensations). No distortion of competition in commercial markets (such as advertising or the acquisition of TV programme rights) could be established. In the light of the foregoing the Commission concluded that over the years 1992-1998 the ad-hoc aid received by RTP are compatible with the common market under Article 86(2) EC.

The commercial broadcaster SIC had complained that the system of annual compensation and nine ad-hoc measures granted by the Portuguese authorities in favour of the public service broadcaster RTP constituted illegal State aid. SIC alleged that this funding distorted competition in the Portuguese broadcasting market. The Commission took a decision on part of the complaints in 1996. However, the Court of First Instance annulled this decision in 2000⁽²⁾.

The Commission ordered Portugal in November 2001 to submit all the information necessary to determine whether the system of annual compensation payments granted to RTP could be considered as an existing aid (see IP/01/1573).

At the same time the Commission opened a formal investigation on nine ad-hoc measures inviting interested parties to comment. Given that all measures were part of the compensation for the fulfilment of a public service mission, the Commission analysed the system of annual compensation payments and the ad hoc measures in parallel. In doing so, it followed the method laid down in the Commission Communication on the application of State aid rules to public service broadcasting.

With regard to the system of annual compensation payments the Commission has come to the preliminary conclusion that, although the system should be regarded as existing aid, it should be amended in order to increase transparency of this aid mechanism and to avoid any potential over-compensation. Therefore, the Commission's competition department has sent a letter to the Portuguese authorities stating this preliminary view.

State financing of Spanish national public broadcaster RTVE

With regard to Spain, where no formal State aid probe had been launched, DG Competition has come to the conclusion that the direct subsidies were insufficient to cover the net costs of the public service. On the other hand, the value of the State guarantee exceeds the net costs of providing the public service. Therefore this existing aid measure should be amended. Therefore, the Commission's competition department has sent a letter to the Spanish authorities with a view to put the financing of RTVE in line with the Communication on broadcasting and with the Transparency Directive. These amendments should ensure that there is no overcompensation.

Two Spanish TV private broadcasters, Telecinco and Antena 3, lodged complaints between 1992 and 1994 alleging State aid in favour of the Spanish public broadcasters. The Commission issued an information injunction against Spain in February 1999 and requested the necessary information to assess whether the alleged aid measures could be considered as existing or as new aid.

The Commission has assessed various State measures in favour of RTVE which include an unlimited State guarantee linked to the legal nature of public entity of RTVE and yearly subsidies.

Law 4/1980 establishing the Statute of RTVE established the financing mechanism of the Spanish public broadcaster by means of allocations from the National State budget as well as with revenues obtained with the activities undertaken. The measures under assessment were foreseen by legislation enacted before the entry of Spain into the European Communities (i.e. before the entry into force of the Treaty with regard to Spain) and have not been substantially altered since then. In line with the ECJ case law, the Commission has therefore preliminary concluded that the measures in question constitute existing State aid.

The Statute of RTVE, law 4/1980, considered radio and television to be essential public services property of the State and entrusted the public entity RTVE with the provision of public broadcasting services. Although RTVE is a company entrusted with a task in the public interest, the financing mechanism is not part of a pre-established financing system and the compensation granted through this system is not calculated on the basis of the cost that an efficient undertaking would incur. Therefore, following the recent Altmark judgement, the qualification of the financing mechanism as State aid is not put into question. According to Article 86(2) of the Treaty - as interpreted by the ECJ and the Commission - State aid that does not exceed the net costs incurred by an undertaking for the provision of a services in the public interest is in line with the internal market rules.

^{(1)OJ 2001/C 320/5}

^{(2)Case T-46/97 SIC v. Commission [2000] ECR II-2125}