His Excellency the Minister of Foreign Affairs Permanent Representation of the Netherlands to the European Union Hermann-Debrouxlaan, 48
Total Page：16
File Type：pdf, Size：1020Kb
COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 22.06.2006 C (2006) 2084 final In the published version of this decision, some PUBLIC VERSION information has been omitted, pursuant to articles 24 and 25 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the WORKING LANGUAGE application of Article 93 of the EC Treaty, concerning non-disclosure of information covered This document is made available for by professional secrecy. The omissions are shown thus […]. information purposes only. COMMISSION DECISION of 22.06.2006 on the ad hoc financing of Dutch public service broadcasters C 2/2004/ (ex NN 170/2003) (Only the Dutch text is authentic) (Text with EEA relevance) His Excellency the Minister of Foreign Affairs Permanent Representation of the Netherlands to the European Union Hermann-Debrouxlaan, 48. 1160 Brussels COMMISSION DECISION of 22.06.2006 on the ad hoc financing of Dutch public service broadcasters C 2/2004/ (ex NN 170/2003) (Only the Dutch text is authentic) (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof, Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof, Having called on interested parties to submit their comments pursuant to the provisions cited above1, Having regard to their comments, Whereas: I. Procedure and background 1 PROCEDURE 1. In the course of 20022 and 20033 the Commission received several complaints alleging that the public funding system in place for Dutch public broadcasters constitutes unlawful and incompatible State aid within the meaning of Article 87(1) of the EC Treaty. 1 OJ C 61, p. 8-21 of 10.03.2004 2 By letter of 24 May 2002 from CLT-UFA S.A. and the associated subsidiaries RTL/Holland Media Groep S.A. and Yorin TV BV; by letter of 10 October 2002 from SBS Broadcasting; by letter of 28 November 2002 from VESTRA. 3 By letter of 3 June 2003 from the Dutch Newspaper Publishers Association and by letter of 19 June 2003 from publishing company De Telegraaf. 2. In the course of the preliminary investigation of the complaints, the Commission received additional information from the complainants4, as well as the Dutch authorities5. 3. Following the preliminary assessment of the alleged aid measures, the Commission informed the Netherlands by letter dated 3 February 2004, that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty with respect to certain measures which could be qualified as new aid. 4. The Commission decision to initiate the procedure was published in the Official Journal of the European Union6. The Commission invited interested parties to submit their comments on the aid. 5. The Netherlands responded to the decision to open proceedings by letter dated 30 April 2004. Moreover, the Commission received comments from 11 interested parties7. By letter of 29 April 2004 the Commission forwarded the comments to the Netherlands. The reaction by the Dutch authorities was received by letter dated 13 August 2004. 6. The Commission asked additional questions to the Dutch authorities by letters of 4 January 2005 and 25 May 2005 to which the Dutch authorities responded by letters of 27 January 2005 and 25 July 2005. Further information was received from one of the complainants (De Telegraaf) on 25 July 2005 and from the Dutch authorities on 2 September. The Commission asked the Dutch authorities for further clarification by e-mails on 22 November 2005, to which the authorities responded on 25 November 2005. The Commission decided after a meeting with the authorities that further clarification was necessary. To this end a request for information was sent to the Dutch authorities on 22 December 2005 to which the Dutch authorities, having been granted a delay, responded on 3 February 2006. Regarding this reply further e-mails were exchanged between the Dutch authorities and the Commission inFebruary 2006 and in April 2006. 7. A meeting between the Dutch authorities and the Commission took place on 24 September 2004. A meeting with De Telegraaf took place on 27 October 2004. A meeting with Broadcast Partners took place on 5 January 2005. A meeting between RTL and the Commission took place on 27 July 2005 and between VESTRA and the Commission on 23 September 2005. The Commission had another meeting with the Dutch authorities on 1 February and on 14 February 2006. 4 By letter of 29 June 2002, 28 October 2002, 21 February 2003 and two letters dated 19 June 2003. 5 By letters of 12 September 2002 and 18 September 2002, in response to an information request from the Commission of 24 June 2002. 6 OJ C 61, p. 8-21 of 10.03.2004. 7 Association of Commercial Television in Europe (ACT), by letter dated 15 April 2004; Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD), by fax dated 8 April 2004; Broadcast Partners, final version by letter dated 27 April 2004; CLT-UFA, RTL/HMG and Yorin (hereinafter referred to CLT-UFA), by letter dated 14 April 2004; De Telegraaf, by letter dated 15 April 2004; Groep Nederlandse Dagbladpers, by letter dated 21 April 2004; Publieke Omroep, by letter dated 21 April 2004; SBS Broadcasting BV, by letter dated 26 April 2004; Branchevereniging van Nederlandse kabelbedrijven (VECAI) by letter dated 8 April 2004; Vereniging van Commerciële Radio (VCR), by letter dated 13 April 2004. 8. In addition to this procedure on ‘new aid’, the financing of the public service broadcasters (hereafter: PSB) through annual State payments and the Stimulation Fund (Stifo, Stichting Stimuleringsfonds Nederlandse Culturele Omroepproducties)8 are being assessed in a separate ‘existing aid’ procedure (cf. State aid No. E-5/2005). In the present decision the Commission refers to the measures which are the object of the ‘existing aid procedure’ only insofar as necessary to provide an overall picture of the financing of public broadcasting. It will not, however, deal with the issue of compatibility with state aid rules of the regular annual payments and of the payments from the Stimulation Fund. 9. This decision will also be limited to assessing the financing of the PSB’s core activities (the so-called main tasks) and thus excluding side activities like the new media services, the provision of SMS and i-mode. Similarly, this decision will not deal with the investment by NOS in the network operator Nozema, which according to complaints might not have been done on market terms. These issues will be dealt with separately. 10. Finally, the decision to open the formal investigation procedure covered the procedure as from 1992. Nevertheless, it appears that the first ad hoc payments were made only in 1994. Furthermore, figures up to 2005 are now available and should be taken into account. The period covered by the decision would therefore range from 1994 – when the first ad hoc payment was made – to 2005 – which is the last year for which final figures are available. It should be noted that the Dutch authorities invited the Commission also to take into account 2006. The figures for2006 are however only provisional and therefore cannot be taken into account. 2 DETAILED DESCRIPTION OF THE PUBLIC BROADCASTING SYSTEM 11. This Chapter will first set out in section 2.1 the actors in the (public) broadcasting sector and then in section 2.2, the different elements of the financing system for the Dutch broadcasting sector in general. In that respect, it will describe the legal provisions entrusting the broadcasters with a public service mission, it will be explained what the different financing mechanisms are (annual payments and ad hoc payments), and finally, it will explain which reserves the public broadcasters have built up and use for the fulfilment of their public task. Subsequently, the commercial activities as performed by the Dutch public broadcasters will be discussed (section 2.5). Section 2.6 explains the acquisition of football rights by the NOS and section 2.7 deals with the relation between broadcasters and cable operators. Finally, section 2.8 sets out which measures are the subject of this procedure. 2.1 Actors in the (public) broadcasting sector 12. The public service broadcasting system consists of different organisations, including eight private associations (private broadcasters with members entrusted 8 Case NN 32/91 approved by the Commission in July 1991. with a public service mission) and ten private foundations (private broadcasters without members entrusted with a public service mission)9. 13. Besides the aforementioned broadcasters, the public service broadcasting system includes another actor – the NOS – which performs a dual role. The first role is that of a public service broadcaster, responsible for TV and radio programmes (under the name of “NOS RTV”). The second role is that of coordinator of the entire public service broadcasting system and is carried out by the management board of the NOS (the so-called ‘Publieke Omroep’ hereafter referred to as PO). The PO, whose functions and tasks are entrusted by the Media Act, stimulates cooperation between public broadcasters, coordinates the three public TV channels and reports twice a year on the public broadcasters’ activities to the Media authority. 14. The NOS receives funding from the media budget for both the tasks performed as “PO” and those performed as NOS RTV. 15. The public service TV-programmes are broadcast by the public service broadcasters over three public channels10. 16. The Dutch Broadcast Production Organisation (Nederlands Omroepbedrijf, hereinafter referred to as NOB) is also part of the public broadcasting system. The NOB carries out the recording, transmission preparation and actual transmission of sound, moving pictures and data to all possible distribution channels.