Judgment of the Court of First Instance (Seventh Chamber) of 6 October 2009 – FAB v Commission

(Case T-8/06)

State aid – Digital terrestrial television – Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg – Decision declaring the aid incompatible with the common market and ordering its recovery – Action for annulment – Meaning of State aid – State resources – Compensation for discharging public service obligations – Aid intended to promote culture – Legitimate expectations

1.                     State aid – Concept – Aid granted to private broadcasters to facilitate the changeover to digital terrestrial television without a public tendering procedure or call for tenders– Included (Art. 87(1) EC) (see paras 48-58)

2.                     Competition – Undertakings entrusted with the operation of services of general economic interest – Definition of services of general economic interest (Art. 86(2) EC) (see paras 63-64)

3.                     State aid – Prohibition – Exceptions – Discretion of the Commission – Judicial review (Art. 87(3) EC) (see paras 77-78)

4.                     State aid – Recovery of unlawful aid – Possible legitimate expectation on the part of the recipient(Art. 88 EC) (see paras 92-93)

Re:

APPLICATION for annulment of Commission Decision 2006/513/EC of 9 November 2005 on the State aid which the Federal Republic of Germany has implemented for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg (OJ 2006 L 200, p. 14).

Operative part

The Court:

1.

Dismisses the action;

2.

Orders FAB Fernsehen aus Berlin GmbH to pay the costs.