2011/1/EU: Commission Decision of 20 July 2010 on the State aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE) (notified under document C(2010) 4925) Text with EEA relevance

• Published date: 04 January 2011
• Date of Signature: 11 February 2011
• Official Gazette Publication: Gazzetta ufficiale dell’Unione europea, L 1, 04 gennaio 2011,Diario Oficial de la Unión Europea, L 1, 04 de enero de 2011,Journal officiel de l’Union européenne, L 1, 04 janvier 2011,Diario Oficial de la Unión Europea, L 93, 7 de abril de 2011

4.1.2011 EN Official Journal of the European Union L 1/9

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COMMISSION DECISION

of 20 July 2010

on the State aid scheme C 38/09 (ex NN 58/09) which Spain is planning to implement for Corporación de Radio y Televisión Española (RTVE)

(notified under document C(2010) 4925)

(Only the Spanish text is authentic)

(Text with EEA relevance)

(2011/1/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having regard to Protocol No 29 on the system of public broadcasting in the Member States annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union (1),

Having called on interested parties to submit their comments pursuant to the provisions cited above (2) and having regard to their comments,

Whereas:

I. PROCEDURE

(1) On 22 June 2009, the Commission received a complaint drawing attention to plans of the Spanish government to amend the system of financing of the national radio and television broadcaster Corporación de Radio y Televisión Española (RTVE). On 5 August 2009 the Commission requested information from Spain concerning this amendment, in particular on the relationship between the new levies and the funding of RTVE. On 1 September 2009 the new Law 8/2009 of 28 August 2009 on financing Corporación de Radio y Televisión Española (3), amending Law 17/2006 of 5 June 2006 on state-owned radio and television (4), entered into force. On 21 September, 22 and 26 October 2009 Spain submitted the requested information on the scheme to the Commission.

(2) By letter dated 2 December 2009, the Commission informed Spain that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (TFEU) in respect of the measure. The Commission decision to initiate the procedure was published in the Official Journal of the European Union (5). The Commission invited interested parties to submit their comments on the aid measure.

(3) Spain responded to the decision to open the procedure by letter of 21 December 2009. The Commission received comments from interested parties. It forwarded them to Spain, which was given the opportunity to react; its comments were received by letter dated 23 March 2010.

(4) The Commission asked additional questions by letters of 19 February and 19 May 2010, to which the Spanish authorities responded by letters of 22 March and 31 May 2010.

(5) On 18 March 2010, by a letter of formal notice pursuant to Article 258 TFEU, the Commission opened infringement proceedings on the grounds that the tax on electronic communications was contrary to Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (6), which lays down precise rules relating to the administrative charges that Member States can levy on companies providing a telecommunications service or network. The State aid investigation is without prejudice to the infringement procedure.

II. DETAILED DESCRIPTION OF THE MEASURE

(6) The current system of financing public broadcasting in Spain by RTVE, as established by Law 17/2006, was approved by the Commission in decisions in 2005 and 2007 (7). Law 17/2006 entrusts the RTVE with a public service mission. Section I of that law (in particular Articles 2 and 3) defines the public service mission of RTVE and specifies that the mission for television and radio services respectively would be performed by the companies RTVE (Radio Televisión Española) and RNE (Radio Nacional de España). Section II, Chapter IV, regulates the financial and economic framework conditions under which RTVE will operate its public service tasks. In particular, Article 33 stipulates that RTVE will receive annual budgetary payments as compensation for the fulfilment of its public service tasks. This compensation shall not exceed the net cost of the public service provided by RTVE and RNE respectively. Section II, Chapter VI regulates external control by the Parliament, the audiovisual authority and the Court of Auditors.

(7) The annual budgeted expenses for running RTVE were EUR 1 177 million in 2007, EUR 1 222 million in 2008, and EUR 1 146 million in 2009. During these last years RTVE received a public service compensation of around EUR 500 million per year (2006: EUR 575 million; 2007: EUR 433 million; 2008: EUR 500 million; 2009, however, with already reduced advertising revenues: EUR 726 million).

(8) Law 8/2009 amends Law 17/2006 with regard to the definition of the public service mission and the possible commercial activities of RTVE. It adds further elements to the public service mission which were approved by the Commission in 2005. In particular, it limits the acquisition of broadcasting rights for sports events of general interest or great interest for society, except for the Olympics and Paralympics, to 10 % of the total annual budget for external supplies, purchases and services (Article 9(1)(i)). It states obligations with regard to programmes for children (Article 9(1)(d)) and limits the broadcasting of films produced by the major international producers for first release at peak times to 52 films per year (Article 9(1)(m)).

(9) The new law provides in particular that the use of advertising, teleshopping, sponsorship and pay-per-view services as sources of revenue will be discontinued by the end of 2009. These commercial revenues shall be replaced by funds generated by existing or new charges on commercial broadcasters and telecommunication operators. Spain expects that the measure will relieve pressure from commercial operators, increase their revenues from advertising and eliminate a potential source of market distortion. RTVE will retain as sources of commercial income the provision of services to third parties and the sale of its own productions (altogether around EUR 25 million).

(10) So far, annual advertising revenues accounted for around EUR 600 million (2007: EUR 667 million; 2008: EUR 565 million). With the disappearance of this commercial income, the net costs for RTVE’s public service broadcasting mission will be nearly identical to the annual budgeted expenses of operating the broadcaster. Accordingly, Spain intends to compensate for the abolition of these revenues by raising its own contribution from public funds up to the annual budgeted expenses of operating RTVE, reduced only by the minor remaining commercial revenues of EUR 25 million mentioned in the previous paragraph.

(11) As overall annual income of RTVE, Article 3(2) of the new law provides, for the years 2010 and 2011, for a maximum amount of EUR 1 200 million, for the years 2012-2014 a maximum increase in this amount of 1 % and for the subsequent years an increase based on the annual consumer price index. When determining these amounts, Spain estimated, in comparison with the annual budgeted expenses of RTVE in previous years, additional annual expenditure of EUR 104 million to fill the air time previously reserved for advertising with other audiovisual productions.

(12) According to Spain’s budgetary planning, this overall amount of annual income will be composed of allocations from the general state budget, according to the scheme provided for in Law 17/2006, of about EUR 500 million, which is in line with the amount contributed in previous years, and through new income generated from three fiscal measures introduced or modified by Articles 4, 5 and 6 of the new law: (a) A tax of 3 % of the revenues of free-to-air TV broadcasters and of 1,5 % of revenues of pay-TV broadcasters. These contributions must not exceed 15 % (for free TV) and 20 % (for pay-TV) of the total annual support for RTVE. Any surplus tax revenue beyond these percentages will go to the general state budget. The tax applies only to entities established in Spain. Services imported from another Member State are not subject to this tax. (b) A tax of 0,9 % on gross operating revenues (excluding those obtained in the wholesale reference market) of telecommunications services operators registered with the register of operators of the Spanish telecoms regulator, Comisión del Mercado de las Telecomunicaciones, in any of the following services: fixed telephony, mobile telephony and Internet access provision. Operators subject to the tax must be operating nationwide or in more than one Autonomous Community and must provide audiovisual services or another service that includes advertising. This contribution must not exceed 25 % of the total annual support for RTVE. Any surplus tax revenue beyond this percentage will go to the general state budget. The tax applies only to entities established in Spain. Services imported from another Member State are not subject to this tax. (c) A share of 80 %, up to a maximum amount of EUR 330 million, of the already existing levy on radio spectrum use as established by Law 32/2003 of 3 November 2003. The remainder will be attributed to the general budget. This percentage can be modified in accordance with the General State Budget laws.

(13) Articles 5 and 6 of Law 17/2006 expressly state that the taxes on commercial TV and telecommunications operators are collected ‘for the purpose of contributing to the financing of RTVE’. Furthermore, the preamble expressly establishes this link between the new taxes and the financial compensation for withdrawing RTVE from the advertising market.

(14) Should the

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