AG Wahl confirms irrelevance of the Altmark conditions for compatibility assessment under Article 106(2) TFEU
- 11/11/2016
- Articles
On 10 November 2016, Advocate General Wahl delivered his opinion in case C-660/15, Viasat Broadcasting UK Ltd (“Viasat”) v European Commission (the “Commission”). The case concerns aid granted to the Danish public broadcaster TV2/Danmark (“TV2”) for the execution of public service obligations. In particular, the case raises the issue of the distinction between the assessment of the existence of state aid and the compatibility of such aid in relation to services of general economic interest.
In its second decision relating to the measures granted to TV2, the Commission found that the measures constituted state aid within the meaning of Article 107(1) TFEU, since the measures did not comply with each of the four conditions laid down in the Altmark judgment, i.e., the landmark judgment on services of economic interest. The Commission however found that the aid was compatible with the internal market within the meaning of Article 106(2) TFEU.
Both TV2 and Viasat, a commercial television broadcaster, appealed the Commission’s decision before the General Court (“GC”). The GC partly upheld the action brought by TV2 and dismissed the action brought by Viasat. Both judgments were appealed before the European Court of Justice (“ECJ”). The opinion of Advocate General Wahl of 10 November 2016 concerns the appeal brought by Viasat against the GC’s judgment in the Viasat case.
According to Viasat, the Commission ought to apply the Altmark conditions when considering whether aid can be declared compatible under Article 106(2) TFEU. As the GC had rejected this argument, Viasat claimed in its appeal that the lower court had erred in law
Advocate General Wahl, in his opinion, proposes that the ECJ dismisses the appeal. In accordance with the GC’s view, the Advocate General confirms that the Altmark conditions are relevant for determining whether an advantage has been granted and therefore, whether a measure constitutes state aid pursuant to Article 107(1) TFEU. By contrast, contrary to Viasat’s claims, the Altmark conditions have no bearing on the assessment of the compatibility with the internal market under Article 106(2) TFEU. In this context, Advocate General points out that if a measure fulfils the Altmark conditions, it would not constitute state aid within the meaning of Article 107(1) TFEU and there would, consequently, be no reason to consider applying Article 106(2) TFEU.
The opinion of Advocate General Wahl is interesting because the ECJ is called upon to consider for the first time the relationship between Article 106(2) and Article 107(1) TFEU as regards the application of the Altmark conditions.