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Public Financing of Public Service Broadcasting and its Qualification as State Aid

With Particular Regard to the "Altmark Trans</I> Jurisprudence

Series:

Benjamin Linke

The book sheds light on the demands of Art. 107(1) TFEU regarding public funding of public service broadcasting (PSB). Broadcasting is of particular importance in the modern structure of democracy. PSB provides broadcasting services that are of higher quality and of more cultural value to the community than services provided by commercial broadcasters. To ensure the operation of PSB, Member States of the European Union have introduced various measures to support broadcasters. These support measures have to comply with European State aid law, which seeks to prevent overcompensation. In its Altmark Trans-ruling, the ECJ laid down specific criteria under which compensation for services of general economic interest (SGEI) should not be considered State aid in the sense of Art. 107(1) TFEU. The author focuses on the Altmark-criteria. Apart from Art. 107(1) TFEU, he also looks at the effect of the Amsterdam Protocol, which is occasionally argued to have a significant impact on the application of the State aid rules to PSB.

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The scope for European Union (EU) intervention in the field of public service broad- casting has been extremely controversial, raising as it does the continuing compe- tence of Member States to determine the scale and nature of public provision in the media sector. Member States first found themselves open to EU oversight through the application of the EU internal market rules, with cross border broadcasters chal- lenging the advertising and content rules imposed in the country of reception on the basis that they restricted the free flow of services. These rules were often seen by the Commission and/or European Court of Justice as designed to protect the existing public service broadcasting systems from external competition.1 As commercial operators began to gain a greater foothold in European markets the nature of the challenge shifted. Thus, complaints began to be brought not by broadcasters loca- ted outside the Member State concerned but by commercial operators established within the State itself who felt disadvantaged by the funding and operations of the incumbent public service broadcaster. Rather than rely on internal market rules the nature of the complaints shifted to the competition law field and, in particular, to the rules on state aid. At issue was the funding of public service broadcasters by the state, which, the commercial operators argued, enabled the public broadcasters to foreclose developing markets, undercut advertising rates and outbid the competition for attractive film and sports rights. Given the potential social and political influence of public service broadcasting, State alarm...

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