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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


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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C. Requirements of State aid and their existence in public service broadcasting


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C.  Requirements of State aid and their existence in public service broadcasting

Granting advantages to undertakings is not accepted without restraint in European law. The means granted to public service broadcasters for the discharge of public service obligations carry the potential of violating European State aid law. The applicable law is contained in Art. 107(1) TFEU, which defines State aid that is incompatible with the internal market and, therefore, generally inadmissible. Art. 107(2–3) and Art. 106(2) TFEU provide derogations from Art. 107(1) TFEU, in which Art. 106(2) TFEU refers specifically to SGEI.65 These rules of European law always have precedence over domestic law.66

The Council’s television directive67 has no (direct) impact on State aid issues, as the framework, according to its recitals, does not affect the Member States’ competence of financing broadcasting services.68 The directive, therefore, is not part of the present work.

The recently adopted so-called Almunia-package69, regarding the application of State aid law to SGEI, will presumably, if at all, have only a minor impact on ← 25 | 26 → PSB, most likely as interpretative guidelines. The Communication on the European framework for State aid, which is part of the Almunia-package, does not even apply to PSB.70 The Commission’s Decision71 – which is also part of the package – could potentially apply, but the scope-requirements seem rather unlikely to be met by PSB, especially considering the amount of public funding broadcasters usually receive as public support...

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