Commission Decision (EU) 2016/2395 of 5 August 2016 on State aid SA.32619 (2012/C (ex 2011/N)) notified by the Kingdom of Spain for the compensation of certain costs for the release of the digital dividend (notified under document C(2016) 4886) (Text with EEA relevance )

• Published date: 31 December 2016
• Official Gazette Publication: Diario Oficial de la Unión Europea, L 361, 31 de diciembre de 2016,Gazzetta ufficiale dell'Unione europea, L 361, 31 dicembre 2016,Journal officiel de l'Union européenne, L 361, 31 décembre 2016

31.12.2016 EN Official Journal of the European Union L 361/1

---

COMMISSION DECISION (EU) 2016/2395

of 5 August 2016

on State aid SA.32619 (2012/C (ex 2011/N)) notified by the Kingdom of Spain for the compensation of certain costs for the release of the digital dividend

(notified under document C(2016) 4886)

(Only the Spanish text is authentic)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

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

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

Having called on interested parties to submit their comments pursuant to the provisions cited above (1), and having regard to their comments,

Whereas:

1. PROCEDURE

(1) On 5 July 2011 the Spanish authorities notified to the Commission two State aid measures. Measure I concerned subsidies for dwellers of collective buildings who, in order to ensure the continuity of the reception of the Free-to-air (‘FTA’) (2) channels so far broadcasted on the 790-862 MHz (‘800 MHz’) band, needed to upgrade the existing Digital Terrestrial Television (‘DTT’) infrastructure or switch to another platform of their choice. Measure II foresaw compensation to public and private broadcasters for additional costs incurred due to the obligation to broadcast simultaneously during the process of the release of the Digital Dividend (3) (‘simulcast’).

(2) Following written exchanges with the Spanish authorities on the notified measures, the Commission adopted on 25 April 2012 a decision (4) not to raise objections for Measure I and to initiate the formal investigation procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘Treaty’) in relation to Measure II both as regards public and private broadcasters. The Commission decision to initiate the procedure (‘opening decision’) was published on 19 July 2012 in the Official Journal of the European Union (5). The Commission invited the interested parties to submit their comments on the measure in question.

(3) The Spanish authorities provided their comments on the opening decision by letters dated 29 June 2012, 12 December 2012 and 6 June 2013. There were furthermore two teleconferences organised with the Spanish authorities: the first one on 24 June 2013 and the second one on 3 June 2014. In addition, three meetings took place with them: the first in June 2014, the second in December 2014 and the third in March 2015.

(4) The Commission also received comments from Abertis Telecom (6) (‘Abertis’) by letter dated 7 August 2012, from Sociedad Gestora de Televisión NET TV (‘NET TV’) by letter dated 14 August 2012, from Broadcast Networks Europe (‘BNE’) by letter dated 17 August 2012, from the European Broadcasting Union (‘EBU’) by letters dated 20 August 2012 and 21 June 2013, and finally from SES Astra (‘Astra’) by letters dated 19 August 2012 and 30 October 2012. In the course of the investigation, several teleconferences and meetings were held: between the Commission and the EBU in June and December 2013 and in June and December 2014, and between the Commission and Astra in June, July and December 2013 and April and November 2014. The Spanish authorities provided observations on the comments of Astra on 12 December 2012.

(5) On 3 September 2014 the Spanish authorities withdrew the notification concerning the compensation of simulcast costs incurred by public broadcasters (but not private broadcasters). They have informed the Commission that Royal Decree 677/2014 on the granting of direct grants to public broadcasters aimed to cover the mentioned compensation on the basis of the concept of Services of General Economic Interest (‘SGEI’). The Decree was published in the Spanish Official Gazette (7) on 6 August 2014 (8).

(6) The Spanish authorities did not submit any further modifications to the notification on Measure II.

(7) Considering that the part of Measure II that concerned public broadcasters was withdrawn by the Spanish authorities in September 2014, the formal investigation procedure as regards that part of Measure II has become without object. Therefore, the Commission has decided to close the formal investigation procedure on that part of Measure II. This decision covers exclusively the notified compensation of simulcast costs to private broadcasters (‘Measure’).

2. DESCRIPTION OF THE MEASURE

2.1. Context

(8) Reaping the benefits of the Digital Dividend by using wireless broadband to ensure coverage of all areas, including remote and rural regions, is an important objective of the Digital Agenda for Europe (9) and thus part of the Europe 2020 Strategy (10). To build their wireless networks, mobile operators require scarce radio frequencies to transmit their signals. If in Member States these frequencies are occupied by terrestrial TV networks, terrestrial broadcasters have to be moved either to another transmission platform (broadband, cable or satellite) or to another (unused) frequency in the available spectrum suited for this purpose. In 2009, the Commission recommended that Member States ensure that all terrestrial television broadcasting services cease using analogue transmission technology and support regulatory efforts aimed at making the valuable 800 MHz frequency band available for electronic communications services. This process is called the release of the Digital Dividend (11) and concerns only the terrestrial television broadcasting services.

(9) The release of the Digital Dividend generates transition costs for terrestrial broadcasters which include costs for simultaneous broadcasting of the signal on the old and the new frequency bands (12).

2.2. European policy on the release of the Digital Dividend

(10) In the past years the broadcasting sector has undergone major changes as a result of the introduction of digital technologies. In comparison with analogue television, digital transmission of television provides for better use of the scarce frequency spectrum, allowing for more TV channels. The 2003 Commission Communication on the transition from analogue to digital broadcasting (13) underlined the benefits of switching over to digital broadcasting and initiated the debate on EU policy orientations on issues such as amount of spectrum to be released and its future use.

(11) The switch from analogue to digital broadcasting resulted in the release of a part of the radio frequency (‘RF’) spectrum that until then was used for TV broadcasting. This was possible thanks to greater efficiency of the digital technology compared to the analogue one. The freed part of the spectrum resulting from this improvement has been called ‘Digital Dividend’.

(12) International agreements, such as those reached at the International Telecommunication Union (ITU) Regional Radiocommunication Conference (RRC-06) in June 2006 and the ITU World Radiocommunication Conference (WRC-07) in November 2007, concluded on the co-primary allocation of the 800 MHz band to mobile services in addition to broadcasting and fixed services (14). However, on the basis of previous allocation of these frequencies to broadcasting services during the early planning of the switch from the analogue to the digital technology some Member States, such as Spain, did not consider the possibility of reusing the freed 800 MHz spectrum for services other than terrestrial broadcasting.

(13) Towards the end of 2007, in the light of the worldwide increase in RF spectrum demand and of the more efficient technologies, the Commission studied the possibilities and enormous potential, both commercial and in terms of innovation and growth, which the Digital Dividend could offer if it was used to provide advanced electronic communication services. The Commission concluded that reaping the full benefits of the Digital Dividend would require Member States' simultaneous assignment of the relevant spectrum for electronic communication services in the shortest possible timeframe (15).

(14) The 2009 Commission Communication on transforming the Digital Dividend into social benefits and economic growth (16) recommended that the Member States should cease using the 800 MHz band for high-power broadcasting services and fully implement the EU technical harmonisation decision by a certain date agreed at the EU level.

(15) Finally, Decision No 243/2012/EU of the European Parliament and of the Council (17) establishing a multiannual radio spectrum policy programme required that all Member States assign the 800 MHz band for electronic communications by 1 January 2013 (18). The decision authorised the Commission to grant specific derogations until 31 December 2015 in the event of exceptional national or local circumstances or cross-border frequency coordination problems (19).

2.3. Evolution of the Digital Dividend in Spain

(16) Spain completed its transition to DTT on 3 April 2010, which terminated analogue broadcasts. Given that the legal basis for the switchover from analogue to digital terrestrial broadcasting — the DTT National Technical Plan (‘NTP’) (20) — dated back to 2005, at that time no plans had been made to use the spectrum (allocated by ITU for terrestrial TV) for other purposes. This fact had two consequences: — The entire spectrum that was released after the analogue switch-off was exclusively reserved in 2005 for terrestrial television services, in order to increase the number of available channels. — The same year, the Spanish Government decided to use the band for the rollout of the first DTT transmitters to facilitate the introduction of the new digital terrestrial

...