State aid: Commission welcomes Court judgment on German support for digital switchover in DVBT Berlin Brandenburg case

The Commission welcomes a judgement, dated 15 September 2011, from the European Court of Justice (“ECJ”) upholding a previous General Court ruling which confirmed a 2005 decision finding that German support to private broadcasters for the switchover to digital television constituted state aid. The ECJ ruled that the German support for the costs incurred by private broadcasters due to the switchover from analog to digital television on the terrestrial platform constituted illegal state aid.

The ECJ found that such state aid can only be granted if the Member State proves that it is a necessary and proportionate instrument to correct a market failure. Germany has failed to demonstrate that as the broadcasters had already agreed to the switchover before state aid was considered. The ECJ further dismissed Germany’s argument that the principle of technology neutrality should not play a role in its state aid analysis. The ECJ found that this was a general principle enshrined in the Commission’s communication of 2003 on the digital switchover and does not allow state support to discriminate between different platforms.

State support given exclusively to a terrestrial platform infringes this principle, unless the Member State can document structural competition problems from the existing offers from other platforms. Germany did not demonstrate that its state aid was aimed at correcting such a problem. Source: Commission Press Release 15/9/2011

Roschier, Attorneys Ltd. - Finland