Judgment of the Court (Sixth Chamber) of 15 September 2011 – Germany v Commission

(Case C-544/09 P)

Appeal – State aid – Introduction of digital terrestrial television in the Berlin-Brandenburg region – Article 87(3)(c) EC – Market failure – Proportionality – Technological neutrality – Incentive effect

1. State aid – Compatibility of aid with the common market – Aid bringing about improvement in the financial situation of the recipient undertaking without being necessary in order for the aims laid down in Article 87(3) EC to be attained – None – Public funding of the move to terrestrial digital television – Assessment of the criterion of necessity (Art. 87(3) EC) (see paras 44, 46-48)

2. Appeals – Grounds – Plea submitted for the first time in the context of the appeal – Inadmissibility (see para. 63)

3. State aid – Prohibited – Derogations – Aid eligible for the derogation laid down in Article 87(3)(c) EC – Conditions – Transition from analogue to digital broadcasting – Condition of technological neutrality – Assessment (Art. 87(3)(c) EC; Commission notice COM(2003) 541 final) (see paras 77, 79-81)

Re:

Operative part

The Court:

1.Dismisses the appeal;

2.Orders the Federal Republic of Germany to pay the costs.