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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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E. Conclusion

Extract

137 E. Conclusion The presented analysis indicates that public funding in PSB has to be essentially qualified as State aid, if the financing does not comply with the four criteria of the Altmark Trans Jurisprudence. In particular, the argument that broadcasting fees are not granted by a Member State or through State resources is immaterial in most cases. However, meeting the Altmark-criteria does not appear to be impossible, contrary to common belief. In this respect, the Member States have to act thoroughly when defining public service obligations. Especially, the often cited discretion of the Member States re- garding the definition of SGEI does not apply in view of the clarity of the definition, as the competence to control the definition stays with the Commission. In that mat- ter the presented analysis takes a different view from the commonly represented positions. In particular, the Amsterdam Protocol does not change this conclusion. This issue is often ignored. The definition, rather, has to be as clear as possible and should comprise a precise catalogue of those activities the broadcaster is entitled and not entitled to do. Abstract terms should be used as rarely as possible. Regarding new developments and to make the definition less restraining, the Member States might establish an evaluation procedure (as a number of States have done; e.g. the Public Value Test) through which the admissibility of new activities under the public service obligations is ascertained ad hoc and eventually (at least indirectly) endorsed by the Member State. To comply...

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