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The EEA Agreement in a Revised EU Framework for Welfare Services pp 241–262Cite as

The Exercise of State Aid Competence by the Commission and the EFTA Surveillance Authority in the Sectors of Largely Non-economic Welfare Services

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Part of the book series: Studies in European Economic Law and Regulation ((SEELR,volume 13))

Abstract

This chapter examines in detail the revised constitutional framework in the EU legal order in the media field, concentrating on public service broadcasting. The case study includes an analysis of the significance of the lack of the Amsterdam protocol and the revised Article 107(3)(d) TFEU as well as more general differences. The chapter points to other fields like the social housing sector to give similar outcomes.

The chapter is organised in first giving a description of the special character of public service broadcasting, including a description of how a broadcasting market was created. Subsequent steps of the analysis provide an assessment of both the Commission and the Authority’s general guidelines and decisional practice in the field of state aid to public service broadcasting. The findings add to the preceding sections (free movement of services and persons) in demonstrating how the EEA integration process is moving beyond economic concerns to stay in parallel with the EU integration process. This includes the rather extensive powers of the EU/EFTA institutions to review national policy choices in the field of public services through the review of financing measures and to some extent to substitute national policies with their own policies also for largely non-economic services.

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Notes

  1. 1.

    This has to some extent already been analysed by Karlsson (2014), pp. 470–490, see previous chapter.

  2. 2.

    For an analysis of the tensions between the provision of social housing in several Member States and EU market regulations, see Gruis and Elsinga’s article (2014), pp. 463–469.

  3. 3.

    Decided 11 December 2012.

  4. 4.

    Case E-1/12 Den norske forleggerforening, paragraph 31.

  5. 5.

    See also Case E-8/13 Abelia regarding state aid in the educational sector.

  6. 6.

    Confer Schweitzer three models presented in the introduction, Schweitzer (2011), pp. 11–62.

  7. 7.

    The Amsterdam Protocol and the revised Article 107(3)(d) TFEU.

  8. 8.

    2009 Commission Broadcasting Communication, EFTA Surveillance Authority’s Broadcasting Communication.

  9. 9.

    Schweitzer (2011), p. 46.

  10. 10.

    Case T-442/03 SIC v Commission [2008] ECR II-1161, paragraphs 151, 153, 154.

  11. 11.

    Cremona (2011), p. 5.

  12. 12.

    Joined Cases T-568/08 and T-573/08, M6 [2010] ECR 2010 II-3397, appeal rejected Case C-451/10.

  13. 13.

    Case T-442/03 SIC v Commission [2008] ECR II-1161, paragraphs 151, 153, 154.

  14. 14.

    At least where it has decided to ensure that public service itself through a public company, Case T-442/03 SIC v Commission [2008] ECR II-1161, paragraphs 151, 153, 154. In such circumstances the Court’s concerns seems to be limited to ensuring that the competition in the market is distorted as little as possible.

  15. 15.

    Se the view of the General Court in Joined Cases T-309/04, 317/04, 329/04 and 336/04 TV 2 Denmark A/S v Commission [2008] ECR II-2935, paragraphs 232–233 and the analysis by Schweitzer (2011), p. 47.

  16. 16.

    The individual decisions by the Commission are by no means exhaustively analysed. Fairly recent articles on the Commission decisional practice can be found in Donders (2015), pp. 68–87. The decisional practice is only analysed for the purpose of the consequences for the EEA Agreement.

  17. 17.

    Reference is made to now Article 14 TFEU (introduced by the Treaty of Amsterdam as Article 16) and Article 167 TFEU on culture and Article 4(2) TEU on regions.

  18. 18.

    It is the following condition within the last sentence in the Protocol which has been interpreted in this manner, see also Sect. 11.1 above on the policymaking role ‘and insofar as such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest’.

  19. 19.

    See the fairly recent analysis by Karen Donders of the Commission’s decisional practice, Donders (2015), pp. 68–87.

  20. 20.

    See reference above Donders (2015), pp. 68–87.

  21. 21.

    A fairly recent Report to the Norwegian Parliament discusses these concerns in view of the Norwegian model for delivering public service broadcasting; see Stortingsmelding Meld. St.38 (2014–15) Åpen og opplyst—Allmennkringkasting og mediemangfald.

  22. 22.

    See the development of the ‘cultural model’ for public service broadcasting with citizenship, universality and quality, Prosser (2005), p. 210 with further references.

  23. 23.

    There are a number of academic studies in the media sector analysing these effects, see Craufurd Smith (2011), pp. 869–897 with further references.

  24. 24.

    See the case TV2 A/S Denmark and the wide margin of discretion regarding the definition of the remit, Case C-660/15 P Viasat, see also the approach taken by the General Court in Joined Cases T-309/04, 317/04, 329/04 and 336/04 TV 2 Denmark A/S v Commission [2008] ECR II-2935.

  25. 25.

    With the technological changes, linear television is for at least some groups of the population replaced by streaming. The argument of the totality of the service is somewhat different when programmes are streamed. Surveys demonstrate however that for large parts of the population linear television is still the preferred option.

  26. 26.

    A number of decisions from the EU Courts recognise the special character of this service, see the referred decisions in this chapter.

  27. 27.

    More on these perspectives in Stortingsmelding Meld. St.38 (2014–15) Åpen og opplyst—Allmennkringkasting og mediemangfald, and Innstilling frå familie. Og kulturkomiteen om Open og opplyst. Allmennkringkasting og mediemangfald.

  28. 28.

    Green paper on the establishment of the common market for broadcasting, especially by satellite and cable, COM (1984) 300 final (TWF Green Paper), pp. 63–105.

  29. 29.

    See i.a. Case 52/79 Debauve [1980] ECR 833.

  30. 30.

    Case 155/73 Sacchi [1974] ECR 40.

  31. 31.

    Provided the principle of non-discrimination was not violated.

  32. 32.

    The ruling in ERT provided further guidance as to the scope of statutory monopolies, Case C-260/89 Elliniki Radiophonia [1991] ECR I-2925. In regard to monopolies the Court stated that ‘Article 90(1) of the Treaty (now Article 106 (1) TFEU prohibits the granting of an exclusive right to transmit and an exclusive right to retransmit television broadcasts to a single undertaking, where those rights are liable to create a situation in which that undertaking is led to infringe Article 86 (now Article 102) by virtue of a discriminatory broadcasting policy which favours its own programmes, unless the application of Article 86 (now article 102) obstructs the performance of the particular tasks entrusted to it’.

  33. 33.

    Regarding the question of establishing state monopolies in certain sectors reference should be made to the EFTA Court Cases E-1/06 Norsk Tipping and the subsequent E-3/06 Ladbrokes.

  34. 34.

    According to the TWF Green Paper, this included the RAI in Italy, DR in Denmark, ERT in Greece, RTE in Ireland and the BBC and IBA in the UK, p 205. Although not included in the Green paper the Norwegian NRK and the Icelandic RÚV could have been listed as a non-profit undertaking.

  35. 35.

    Green paper on the establishment of the common market for broadcasting, especially by satellite and cable, COM (1984) 300 final (TWF Green paper), p. 206.

  36. 36.

    This approach was based on case law from the CJEU, see i.a. Case C-149/79 Commission v Belgium [1982] ECR 1845.

  37. 37.

    TWF Green paper, p. 203.

  38. 38.

    See the interpretation by Mastroianni (2011), p. 157.

  39. 39.

    Sectors such as television advertising (now Articles 19–26 AVMS), the protection of minors (Article 27 AVMS), the right of reply (Article 28 AVMS).

  40. 40.

    See Articles 3(2), 3(4).

  41. 41.

    The EFTA Court case law on the Directive includes the Mattel/Lego Decision, Joined Cases 8/94 and 9/94 and the TV1000 case, E-8/97.

  42. 42.

    See i.a. Report to the President of the European Commission published 9 May 2010, A New Strategy for the Single market: At the Service of Europe’s Economy and Society.

  43. 43.

    Commission Broadcasting Communication 2001, 2001/C 320/04.

  44. 44.

    Commission Broadcasting Communication 2009, 2009/C 257/01.

  45. 45.

    Treaty of Amsterdam, Protocol on the Systems of Public Broadcasting in the Member States (1997), now Protocol 29 annexed to the TFEU.

  46. 46.

    http://ec.europa.eu/competition/sectors/media/decisions_psb.pdf.

  47. 47.

    Commission Broadcasting Communication 2001, 2001/C 320/04, Commission Broadcasting Communication 2009, 2009/C 257/01.

  48. 48.

    Donders (2015), pp. 68–87.

  49. 49.

    Commission decision E2/2008, 28 October 2009.

  50. 50.

    Commission decision E2/2008, 28 October 2009, paragraph 177.

  51. 51.

    Commission decision E5/2005, 26 January 2010.

  52. 52.

    Donders (2015), pp. 68–87, in section IV, 2 with further references.

  53. 53.

    Commission decision 2012/E paragraph 273–279, 7 May 2014.

  54. 54.

    Commission decision 2012/E paragraph 273–279, 7 May 2014, paragraph 266.

  55. 55.

    Commission decision 2012/E paragraph 273–279, 7 May 2014, paragraph 258.

  56. 56.

    Donders (2015), pp. 80–81.

  57. 57.

    Donders (2015), pp. 80–81.

  58. 58.

    Communication from the Commission on the Application of State Aid rules to Public Service Broadcasting, 2001/C 320/4, [2001] OJ C320/05.

  59. 59.

    Communication from the Commission on the application of State aid rules to public service broadcasting, OJ C 257, 27.10.2009, p. 1.

  60. 60.

    http://www.eftasurv.int/media/state-aid-guidelines/Part-IV%2D%2D-The-application-of-the-state-aid-rules-to-public-service-broadcasting.pdf.

  61. 61.

    The 2011 package replaced the 2005 package from the Commission on SGEI.

  62. 62.

    http://www.eftasurv.int/media/state-aid-guidelines/Part-VI%2D%2D-Compensation-granted-for-the-provision-of-services-of-general-economic-interest.pdf.

  63. 63.

    See Chap. 1 in note 1, p. 1.

  64. 64.

    See for example Dec No 306/09/COL paragraphs 3.2.1, 3.2.2.3.2 several references, 3.3.1, and Dec No: 36/10/COL, p. 3.

  65. 65.

    OJ C 30, 5.2.1999, p. 1.

  66. 66.

    See letter d) and the reference in paragraph 1–7.

  67. 67.

    Resolution of the Council and of the Representatives of the Governments of the Member States, meeting with the Council of 25 January 1999 concerning public service broadcasting, OJ C 30, 5.2.1999, p. 1.

  68. 68.

    OJ No L 325, 21.12.2000, p. 33 and EEA Supplement No 60, 21.12.2000, p. 423 (Icelandic) and p. 424 (Norwegian), entry into force on 1 October 1999.

  69. 69.

    See paragraph 47 in the Communication.

  70. 70.

    See paragraph 48 in the Communication.

  71. 71.

    See paragraph 48 in the Communication.

  72. 72.

    Confer paragraph 54 in the Authority’s Communication.

  73. 73.

    Confer paragraphs 84 and 86 in the Authority’s Communication.

  74. 74.

    See paragraph 94 in the Communication.

  75. 75.

    Confer paragraph 94 in the Authority’s Communication.

  76. 76.

    Case No 48095 (Norway) and Cases No 48094 and 55944 (Iceland).

  77. 77.

    Decision 8 July 2009.

  78. 78.

    Decision 9 February 2011.

  79. 79.

    Decision 16 December 1999.

  80. 80.

    The complete set of proposed measures can be found on pages 46–47 in decision 306/09/COL.

  81. 81.

    In particular an e-mail dated 23 November 2009.

  82. 82.

    Decision 3 February 2010.

  83. 83.

    http://www.medietilsynet.no/Documents/Nyhetsdokumenter/Allmennkringkasting/300610_rapport_nrks_nettjenester.pdf.

  84. 84.

    For example the planned wildlife internet service from NRK (UT.NO) and also some mobile services, see report from the Media Authority, p. 49.

  85. 85.

    One example being Trafikkportalen which was approved by the Ministry of Culture.

  86. 86.

    See Decisions NO 38/11/COL and 318/13/COL.

  87. 87.

    Decision 11 September 2013.

References

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Miscellaneous

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Authors and Affiliations

  1. Independent Appeals Board for Competition Cases in Norway, EEA Competition Authority, Simonsen Vogt Wiig Lawfirm, Oslo, Norway

    Karin Fløistad

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Fløistad, K. (2018). The Exercise of State Aid Competence by the Commission and the EFTA Surveillance Authority in the Sectors of Largely Non-economic Welfare Services. In: The EEA Agreement in a Revised EU Framework for Welfare Services. Studies in European Economic Law and Regulation, vol 13. Springer, Cham. https://doi.org/10.1007/978-3-319-95043-3_13

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