The change to the criterion used for charging the fee which finances public service broadcasters in Germany is not unlawful State aid, Advocate General Manuel Campos Sánchez-Bordona states in conclusions returned on Wednesday 26 September (case C-492/17).
In Germany, public service broadcasters at national level (such as ARD and ZDF) and certain regional broadcasters (e.g. Südwestrundfunk) have three sources of revenue: a broadcasting fee, advertising and other commercial activities. In 2007, the Commission declared that this method of financing could be considered ‘existing aid’ within the meaning of the Regulation (659/1999) as it existed before the entry into force of the Treaty and remained applicable afterwards.
In 2013, changes were made to the criterion for calculating the fee: it is now based on any individual (tenant or owner) occupying a dwelling, whereas previously it was based on the possession of each broadcast-receiving device.
This new criterion has been challenged before various German courts, including the Regional Court of Tübingen. This Court has asked the Court of Justice to take position on the compliance of the amended contribution with EU law, as it considers that the legislative change should have been notified to the European Commission. It also notes that the increase in the number of persons liable to pay it has led to a significant increase in revenue of approximately €700 million a year.
In his conclusions, the Advocate General considers that the German law that changes the broadcasting fee does not substantially alter the previous system and therefore does not constitute a new public aid measure that should have been notified to and approved by the Commission.
According to Campos Sánchez-Bordona, the beneficiaries, the temporal effects and the objectives of the aid are unchanged. Furthermore, contrary to the assertions of the Regional Court, the revenue generated by the broadcasting fee was unchanged between 2009, before the change to the law, and 2016.
Neither the increase in the number of people liable for the fee, nor the alleged increase in revenue are relevant when judging whether the measure is a new one, as the share of revenue collected that is subsequently allocated as public aid to the public broadcasting bodies is the subject of specific decisions at federal level, following controls by the ad hoc KEF committee.
He therefore considers that there is no automatic link between the change to the charging criterion for the broadcasting fee and the level of aid received by German public service broadcasters.
It is worth noting that Campos Sánchez-Bordona also rejects the argument that the use by public service broadcasters of an administrative mechanism to recover unpaid fees more quickly, rather than applying to the ordinary courts, constitutes unlawful State aid. (Original version in French by Mathieu Bion)