State aid: Commission confirms that Spain needs to recover incompatible aid from certain digital terrestrial operators

The Commission has concluded that the aid received by terrestrial operators for the digitisation and extension of the terrestrial television network in remote areas of Spain was against EU State aid rules. Following the annulment of a 2013 Commission decision, the additional investigation has confirmed that, between 2005 and 2008, the operators of terrestrial platforms received an incompatible selective advantage over their competitors using other technologies, in breach of the principle of technological neutrality. Spain now has to recover the incompatible aid.

Following an additional in-depth investigation, the Commission confirmed that the measures adopted by Spain between 2005 and 2008 to facilitate the switch from analogue to digital television constitute incompatible State aid. The aid was granted for the digital switch-over as well as for the operation and maintenance of the digital television network. In particular, the measures lack technological neutrality, since they envisage digital terrestrial television (“DTT”) as the only technology for the subsidised digital switch-over. Alternative technologies (such as satellite) could not benefit from the aid measures. The measures are selective because they benefit only DTT operators, although DTT and satellite technologies are in a comparable factual and legal situation (satellite technology could have been used for the digital switch-over in remote areas).

On this basis, the Commission concluded that the scheme cannot be considered compatible with the internal market on the basis of Article 107(3)(c) or Article 106(2) of the Treaty on the Functioning of the European Union (TFEU).

Recovery of incompatible aid

As a matter of principle, EU State aid rules require that incompatible State aid is recovered without delay in order to remove the distortion of competition created by the aid. There are no fines under EU State aid rules and recovery does not penalise the companies in question. It simply restores equal treatment with other companies.

Spain will determine the amount to be recovered from each individual beneficiary, in line with the methodology set out under the Commission decision adopted today. Therefore, the final figures on the number of companies subject to recovery and on the total aid amount to be recovered cannot be known at this stage.

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