Judgment of the Court (Sixth Chamber) of 15 September 2011 – Germany v Commission

(Case C-544/09 P)

Appeal – State aid – Introduction of digital terrestrial television in the Berlin-Brandenburg region – Article 87(3)(c) EC – Market failure – Proportionality – Technological neutrality – Incentive effect

1.                     State aid – Compatibility of aid with the common market – Aid bringing about improvement in the financial situation of the recipient undertaking without being necessary in order for the aims laid down in Article 87(3) EC to be attained – None – Public funding of the move to terrestrial digital television – Assessment of the criterion of necessity (Art. 87(3) EC) (see paras 44, 46-48)

2.                     Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility (see para. 63)

3.                     State aid – Prohibited – Derogations – Aid eligible for the derogation laid down in Article 87(3)(c) EC – Conditions – Transition from analogue to digital broadcasting – Condition of technological neutrality – Assessment (Art. 87(3)(c) EC; Commission notice COM(2003) 541 final) (see paras 77, 79-81)

Re:

Appeal against the judgment of the Court of First Instance (Seventh Chamber) of 6 October 2009 in Case T-21/06

Germany

v

Commission

by which that court dismissed the action 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 in Berlin-Brandenburg (OJ 2006 L 200, p. 14) – Infringement of Article 107(3)(c) TFEU.

Operative part

The Court:

1.

Dismisses the appeal;

2.

Orders the Federal Republic of Germany to pay the costs.