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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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D. Does public funding of public service broadcasting comply with the "Altmark"-criteria?

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65 D. Does public funding of public service broadcasting comply with the Altmark-criteria? So far, the analysis showed that there are no compelling reasons to qualify public funding in PSB as non-State aid. To not fall under Art. 107(1) TFEU, PSB has to fulfil the requirements of the Altmark-jurisprudence. In this case a favour in the sense of Art. 107(1) TFEU would be lacking. Below, we put under discussion the question whether, and under what circumstances do compensation payments comply with the four criteria from the Altmark Trans-jurisprudence. I. 1st Criterion: Definition of and entrustment with public service obligations The first Altmark-criterion demands that the recipient is actually required to dis- charge public service obligations and those obligations have to be clearly defined.288 The importance of this requirement cannot be underestimated as the definition of the obligations sets the framework for the allocation of costs and revenues.289 If the definition is too broad, almost any costs can be assigned to the public service obligations. The requirement prevents Member States from compensating alleged public service obligations in hindsight (after the services have been executed).290 Conse- quently, all public service obligations have to be defined in a comprehensive way beforehand. Compensation payments for services that are not part of the public service obligations at the time of service provision are not possible. The first criterion resembles the first requirement of Art. 106(2) TFEU and has very likely been derived from it. This raises the question whether the first...

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