HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"EN
13.7.2012 Official
Journal
of
the
European
Union L
183/1
II
(Non-legislative acts)
DECISIONS
COMMISSION DECISION
of 20 December 2011
on the State aid C 85/01 on ad hoc measures implemented by Portugal in favour of RTP
(notified under document C(2011) 9429)
(Only the English text is authentic)
(Text with EEA relevance)
(2012/365/EU)
THE EUROPEAN COMMISSION,
procedure laid down in Article 88(2) of the EC Treaty in
respect of a number of the ad hoc measures granted to
RTP.
Having regard to the Treaty on the Functioning of the European
Union, and in particular the first subparagraph of
Article 108(2) ( 1 ) thereof,
(3) The
Commission’s
Decision
to
initiate
the
procedure
was
published in the Official Journal of the European Commu
Having regard to the Agreement on the European Economic
nities. Subsequently, Article 1 of Commission Decision
Area, and in particular Article 62(1)(a) thereof,
2005/406/EC of 15 October 2003 on ad hoc measures
implemented by Portugal for RTP ( 3 ), found that certain
of those measures, namely the State aid of PTE
Having called on interested parties to submit their comments
68 006 million granted by Portugal to RTP in the form
pursuant to the provision(s) cited above ( 2 ) and having regard to
of an agreement with the social security scheme in 1993,
their comments,
capital injections in the period 1994 to 1997 and a loan
in 1998 to be compatible with the common market
within the meaning of Article 86(2) of the EC Treaty ( 4 ).
Whereas:
In addition, Article 2 of that Decision stated that certain
measures did not contain State aid, namely the
exemption from registration charges, the payment for
I. PROCEDURE
the hiving-off of the television broadcasting network,
the facilities granted for payment of the annual fee for
(1) By
three
complaints
submitted
in
1993,
1996
and
1997
the use of the television broadcasting network, the
by the commercial broadcaster Sociedade Independente de
protocol on cinema promotion, the bond issue and the
Comunicao SA (SIC), the Commission was informed that
restructuring plan for the period 1996 to 2000.
Portugal had implemented a number of ad hoc measures
and annual compensation measures in favour of the
Portuguese public broadcaster, Radioteleviso Portuguesa
SA (RTP).
(4) On
26
June
2008,
the
Court
of
First
Instance
in
Case
T-
442/03 ( 5 ) annulled part of Decision 2005/406/EC on
two grounds. It annulled Article 2 of that Decision
(2) By
letter
dated
15
November
2001,
the
Commission
insofar as it found that the ‘exemption from registration
informed Portugal that it had decided to initiate the
charges’ does not constitute State aid. The Court found
that the Commission’s task was to establish, in relation
( 1 ) With effect from 1 December 2009, Article 88 of the Treaty estab
to the ad hoc advantage consisting of the exemption
lishing the European Community (EC) has become Article 108 of
from payment of the registration charges and fees
the Treaty on the Functioning of the European Union (TFEU). The
relating to its transformation into a public limited
two sets of provisions are, in substance, identical. For the purposes
company (hereafter ‘temporary exemption’), whether it
of this Decision, references to Article 108 of the TFEU should be
understood as references to Article 88 of the EC Treaty, where
appropriate. In the same manner, Article 86(2) of the Treaty estab
( 3 ) OJ C 85, 9.4.2002, p. 9.
lishing the European Community has become Article 106(2) of the
( 4 ) OJ L 142, 6.6.2005, p. 1.
Treaty on the Functioning of the European Union.
( 5 ) Judgment of the Court of First Instance of 26 June 2008, in Case
( 2 ) OJ C 329, 24.12.2008, p. 24.
T-442/03, SIC v Commission [2008] ECR II-1161.

---

L 183/2
EN
Official Journal of the European Union
13.7.2012
was compatible with the logic of the Portuguese system
(10) Portugal replied to the Commission’s request for
for the transformation of public undertakings into public
information by letter dated 8 June 2010 and submitted
limited companies to occur by legislation, or whether the
the requested external audits on the public service reports
recourse to legislation was a derogation which was
by letter dated 12 August 2010. Further information by
intended to confer an advantage on public undertakings
Portugal was submitted by letter dated 29 September
in relation to other undertakings.
2010. A meeting took with Portugal on 29 March
2011 and further information was supplied by Portugal
to the Commission on 17 June 2011, 25 August 2011
(5) For
the permanent advantage resulting from an unlimited
and 26 October 2011.
exemption from registration charges and other charges in
respect of any act of inscription, registration or
annotation granted to RTP (hereafter ‘permanent exemp
By letter registered on 15 December 2011, Portugal
tion’), the Court found that while it is not unlikely that
exceptionally agreed that this Decision be adopted in
the exemption in reality was not permanent (see para
English as its authentic language.
graphs 73 and 79 of the judgment), that would not alter
the finding that the general nature of that exemption had
not been demonstrated by the Commission. The Court
(11) This
Decision
only
deals
with
the
ad
hoc
measures
further found that while it might be that RTP was trans
covered by the Decision to open the formal investigation
formed by Portugal into public limited company because
proceedings. Some of the measures, which were declared
that was considered necessary for the fulfilment of the
not to constitute State aid within the meaning of
public service remit, this was not accompanied by
Article 87(1) EC Treaty in Decision 2005/406/EC, have
sufficient evidence.
not been annulled by the Court in Case T-442/03 and
Article 2 of Decision 2005/406/EC has therefore become
final. Those measures concern the payment for the
(6) The
Court
dismissed
the
applications
as
regards
the
hiving-off of the television broadcasting network, the
finding in Decision 2005/406/EC not to classify the
facilities granted for payment of the annual fee for the
1994 bond issue and the payment facilities for the
use of the television broadcasting network, the protocol
license fee as State aid.
on cinema production, the bond issue and the restruc
turing plan for the period from 1996 to 2000. However,
as required by the Court in Case T-442/03, the
(7)
As regards the compatibility of the State aid measures
Commission will make a new assessment as regards the
(Article 1 of Decision 2005/406/EC), the Court found
temporary and permanent exemption from notarial deed
that the Commission could not rely on the public
charges as well as registration charges and publication
service reports and the data contained therein, without
costs.
having an external audit for those reports, as required by
national law. The Commission was therefore not entitled
to conclude that the State aid measures were compatible
This Decision focuses on the financial relation between
with the common market within the meaning of
RTP and Portugal in the period from 1992 to 1998 with
Article 86(2) of the Treaty (now 106(2) TFEU and the
regard to the agreement with the social security scheme
‘internal market’) ( 6 ). The Court annulled Article 1 of the
in 1993, the capital injections during the period from
Decision 2005/406/EC.
1994 to 1997 and the loan of in the year 1998. This
Decision does not deal with the questions of the legal
classification and compatibility with the Treaty of the
(8) Following
the
judgment
of
the
Court
in
Case
T-442/03,
annual compensation payments granted to RTP, which
the Commission drew the attention of interested parties
has been dealt with in the Commission’s Decision of
to the fact that the Commission’s investigation in this
22 March 2006 in Case No E 14/05 ( 8 ). In addition,
case had been reopened and invited comments from
on 4 July 2006, the Commission adopted a Decision
third parties ( 7 ).
regarding RTP’s financing restructuring agreement, in
Case NN 31/06 ( 9 ).
(9) The Commission received
comments from the
complainant on 10 March 2009, which were
forwarded to Portugal on 8 April 2009. Further
(12) However,
in
order
to
have
a
complete
‘picture’
of
the
financial relations between Portugal and RTP during the
comments from the complainant were received on
period covered by the Commission’s investigation in this
17 June 2009, which were forwarded to Portugal on
Case, the Commission must consider not only the ad hoc
28 July 2009. Portugal replied to both sets of
measures, but also the financial support granted to RTP
comments by letters dated 7 and 8 September 2009.
by means of annual compensation payments. Therefore,
Portugal sent further information to the Commission
this Decision refers to the annual compensation
on 23 February 2010, 4 March 2010 and 15 April
payments to the extent necessary to clarify the Commis
2010. The Commission sent an information request to
sion’s reasoning on the ad hoc measures.
Portugal on 10 May 2010, requesting in particular that
independent external audits of the public service reports
for the period from 1992 to 1997 be conducted.
( 8 ) Case No E 14/05 of 22 March 2006 — Compensation payments to
public service broadcaster RTP.
( 9 ) Case NN 31/06 of 4 July 2006 — Financial support to restructure
( 6 ) See paragraph 255 and 256 of the Judgment in Case T-442/03.
the accumulated debt of the Portuguese public service broadcaster
( 7 ) See footnote 2.
RTP (OJ C 222, 15.9.2006, p. 4).

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/3
II. DETAILED DESCRIPTION OF THE ISSUES AT STAKE
A.2. MEASURES ( 13 )
A. MEASURES IN FAVOUR OF RTP
Annual compensation payments
A.1. DESCRIPTION OF THE RECIPIENT RTP
(19) The
annual
compensation
payments
to
RTP
constitute
the main mechanism for compensating RTP for its
(13) RTP
(at
the
time
Rádio
e
Televiso
Portuguesa
SARL)
was
public service obligations. In the period from 1992 to
set up as a public limited company by deed of
1998, RTP received annual compensation payments
15 December 1955, following the decision of Portugal
totalling PTE 66
495
million (around EUR
332
to establish a broadcasting company that would be
million) ( 14 ) to cover the costs of its public service
entrusted with the concession for the provision of the
obligations. The legal basis for the annual compensation
public service of television broadcasting ( 10 ). The public
payments is Article 5 of Law No 21/92 ( 15 ).
service concession contract was signed on 16 January
1956.
(20) Table
1
gives
a
breakdown
of
the
annual
compensation
(14) By
Decree-Law
No
674-D/75
of
2
December
1975,
RTP
payments granted to RTP in the period from 1992 to
was nationalised. That Decree-Law converted RTP into a
1998, covered by this Decision.
public undertaking with the name ‘Radioteleviso
Portuguesa EP’, to which all the legal rights and
obligations of its predecessor were transferred under
the Decree-Law.
Table 1
Amount of annual compensation payments
(15) RTP
had
a
monopoly
position
on
the
national
broad
1992-98
casting market until the 1980s. It operated two television
channels, RTP1 and RTP2. In the 1990s, it started facing
(PTE and EUR million)
competition from commercial broadcasters after Portugal
1992 1993 1994 1995 1996 1997 1998
granted licences in February 1992 to SIC and the
commercial broadcaster TVI to broadcast on a third
6 200 7
100 7
145 7
200 14
500 10 350 14
000
and fourth channel respectively ( 11 ).
EUR
EUR
EUR
EUR
EUR
EUR
EUR
26,9 (*)
35,4
35,6
35,9
72,3
51,6
69,8
(16) Law
No
21/92
of
14
August
1992
converted
RTP,
EP
into a public limited company with the name ‘Radio
(*) In the Commission Decision of 4 July 2006, in State aid Case
NN 31/06 (ex-CP 164/01, CP 60/03 and CP114/04) — Portugal
televiso Portuguesa SA’ and approved its new statutes.
Financial support to restructure the accumulated debt of the
Portuguese public service broadcaster RTP, in footnote 25, the
Commission clarified that the compensation amount in the original
decision in case C 85/2001 should be EUR 26,9 million rather than
(17) RTP performs both public service broadcasting activities
EUR 30,9 million as stipulated originally in decision C 85/2001. As
and commercial activities. RTP is legally allowed to
the figure of EUR 26,9 million was considered the correct amount in
pursue commercial or industrial activities related to the
Decision NN 31/06, it is also be used in this Decision.
Source: Council of Ministers Resolution.
activity of television ( 12 ).
Exemption from notarial deed charges, registration
(18) RTP’s
commercial
activities
have
been
conducted
through
charges and publication costs
financial participation in companies, which are legally
distinct from RTP and have their own structure and
(21) At
the
time
when
RTP
was
transformed
into
a
public
accounting system.
limited company, the Portuguese law on company regis
tration can be described as follows. Article 7(1) of the
Portuguese company code (Código das Sociedades Comer
( 10 ) Law No 40341 of 18 October 1955 in which the Portuguese
Government undertook to promote: ‘the establishment of a
ciais), in its version in force at the time of the trans
public limited company (…) with which it will conclude a
formation of RTP provided that the articles of association
concession contract for public service television broadcasting on
(contrato de sociedade) of a trading company had to be
Portuguese territory’.
formalised by a notarial deed.
( 11 ) Points 11.4 and 11.5 of Cabinet Resolution No 49/90 of
31 December 1990 and point 3 of Cabinet Resolution No 6/92
of 22 February 1992.
( 13 ) This Decision contains no further description of the measures,
( 12 ) The Annex to Law No 21/92 on the Statutes of RTP provides in
which were not been annulled b y the Court in Case T-442/03.
Article 3(2) thereof that RTP may perform the following
See recital 11 of this Decision.
commercial activities: (i) television advertising; (ii) marketing of
( 14 ) EUR 1 = 200,482 PTE, fixed exchange rate at the time when
products (namely of programmes and publications related to their
Portugal adopted the euro (OJ L 359, 31.12.1998, p. 1).
activities); (iii) providing technical consultancy and professional
( 15 ) According to Article 5 of Law No 21/92: ‘Performance of the
training and cooperation with other national and foreign bodies;
public service obligations entrusted to RTP SA […] shall confer
(iv) marketing and rental of television equipment, films, magnetic
on that company the right to a compensation payment the exact
tapes, videocassettes and similar products; (v) take interests in
amount of which will correspond to the actual cost of providing
additional company groups and European economic interest
the public service, which shall be determined on the basis of objec
groups as well as hold shares or quotas in other companies,
tively quantifiable criteria and in accordance with the principle of
under any of the forms foreseen under commercial legislation.
sound management.’.

---

L 183/4
EN
Official Journal of the European Union
13.7.2012
Article 18(5) of the company code provided that the act
(26) Under Article 11(2) of Law No 21/92, RTP was
setting up a public limited company, after the company
exempted from paying other registration fees directly
had been established in due legal form, had to be
linked to the modification of the legal nature of the
recorded in the commercial registry. Registration was
company. Article 11(2) reads as follows:
compulsory pursuant to article 15(1) and 3(a) of the
Commercial Registry Code (Código do Registo Comercial)
and Article 166. o of the company code.
‘All acts of inscription, registration and annotation before
all registration departments, all authorities and all public
bodies, in particular the national register of legal persons,
In accordance with Article 70(1)(a) of the Commercial
the register of mortgages and the vehicle registration
Registry Code, in its version in force at the relevant time,
department shall be carried out on the basis of a
the act setting up a public limited company had to be
simple request signed by two members of the under
published in the Diário da República (see Article 70(2) ( 16 ))
taking’s Board of Administration and shall be free of
The publication must be carried out ex officio by the
any charges and fees.’.
registrar, at the expense of the interested party (see

Article 71(1) of the Commercial Registry Code)
(27) According
to
Portugal,
the
provision
of
Article
11(2)
was
(22) Upon
its
transformation
into
a
public
limited
company
derived from the application of Decree-Law No
in 1992, RTP was exempted from the payment of the
404/90 ( 18 ) and confirms the applicability to RTP of a
notarial and registration charges related to the regis
provision of general application. On the basis of article 1
tration of the legal transformation of RTP from a
of this law, undertakings which, up to 31 December
public company into a public limited company. The
1993, performed acts of cooperation or concentration
value of the exemptions was PTE 33 million (approxi
could be granted exemption from transfer tax on fixed
mately EUR 164 000). Normally, under Portuguese law,
assets, which were necessary for the concentration or
all legal persons have to pay the charges levied on the
cooperation. Article 1 of that law also provided for an
setting up of a company and the amendment of the
exemption from the emoluments and other legal charges
company’s statutes or any other relevant modifications
which could be due for the performance of such acts.
of the company.
(28) Portugal
stated
that
RTP
has,
on
several
occasions
in
the
(23) The
legal basis for the exemption from registration
past, paid notarial and registration charges related to
charges is Article 11(1) of Law No 21/92, which
certain capital increases and other operations after its
provides that:
transformation into a public limited company ( 19 ).
‘the statutes of RTP SA (…) are hereby approved; they do
not need to be transformed into a deed, but shall be
Rescheduling of debt due to the social security
automatically registered, free of duties and expenses, on
scheme and waiver of interest for late payment
the basis of the Journal of the Republic (Diário da
República) in which they are published.’.
(29) In
the
period
from
1983
to
1989,
RTP
‘built
up’
a
debt
to the social security scheme of PTE 2 189 million arising
from its failure to pay social security contributions. The
(24) Article 11(1) of Law No 21/92 is derived from the appli
background to that debt was a dispute between RTP and
cation of Law 84/88 of 20 July 1988 on the trans
Social Security administration on the interpretation of
formation of public undertakings into public limited
the social security deductions for overtime and artists
companies. Article 1 of Law No 84/88 provides that
fees.
public undertakings, even if nationalised, could be
converted by decree-law into public limited companies.
It reads:
(30) The
Social
Security
administration’s
interpretation
was
laid down in Article 2(e) of Implementing Decree No
12/83 of 12 February 1983. In order to avoid legal
‘Public undertakings … may be transformed by decree-
proceedings, the two parties reached an agreement
law into public limited companies owned entirely or in
under which the Social Security administration would
majority by public entities, in accordance with the
waive its interest claim for late payment and accept a
Constitution and with this law.’.
rescheduled payment of the debt. Following the
settlement of the legal dispute, the Implementing
(25) Article
3(2)
of
Law
No
84/88
on
the
transformation
of
Decree was never revoked.
public undertakings into public limited companies, also
provides that such a decree-law must approve the statutes
of the public limited company. Pursuant to Article 3(3)
(31) On 6 May 1993, a joint decree of the Ministry of Finance
of Law No 84/88, that decree-law constitutes a sufficient
and the Ministry of Social Security formally authorised
document for the registration requirements to be carried
the rescheduling of the debt in 120 monthly instalments
out ( 17 ).
and waived the fines and interest due for the amount of
PTE 1 206 million (EUR 6 million).
( 16 ) This provision has now been amended and stipulates publication on
a publicly accessible internet site.
( 18 ) Decree-Law No 404/90 of 21 December 1990.
( 17 ) Article 3(2) and (3) of Law No 84/88 of 20 July 1988.
( 19 ) Submission Portugal 8 June 2010, paragraph 248 et seq.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/5
(32) The conditions for authorising the exceptional
subordinated loan between from the Public Debt Stabili
arrangements for settling RTP’s debts owed to the
sation Fund (Fundo de Regularizao da Dívida Pública)
Social Security Scheme are laid down in Decree-Law
to RTP and laying down the conditions of a loan of PTE
No 411/91. Article 2(1) of that Decree-Law provides
20 000 million (EUR 99,8 million) to increase RTP’s
that the authorisation for must be indispensable in
capital.
order to guarantee the viability of the debtor and the
arrangements for may be applied, inter alia, on the
ground that, as provided for in Article 2 (d) of the
(36) The
Public
Debt
Stabilisation
Fund
is
managed
by
the
Decree-Law, the indebted undertaking ‘has been the
Public Debt Management Institute (Instituto de Gesto
subject of occupation, worker self-management or state
de Crédito Público), which is responsible for managing
intervention’.
the debt of the Portuguese State and for implementing
the central borrowing programme, in accordance with
the Public Debt Law (
Annual capital injections in the period 1994 to 1997

21 ) and the guidelines laid down
by the Portuguese Government. That Institute is subject
(33) In
the
period
from
1994
to
1997,
Portugal
increased
the
to the authority and supervision of the Portuguese
capital of RTP each year. The following table gives an
Ministry of Finance ( 22 ).
overview of the different capital increases, which
amounted to PTE 46 800 million (EUR 233 million).
(37) From the date on which the sums were available to RTP,
the loan was subject to annual interest payments at the
Table 2
12-month Lisbor rate, calculated on the first date of each
period, plus 20 basis points ( 23 ).
Increases in RTP’s share capital 1994 to 1997
(PTE million)
(38) According to the contract, the loan was to be reimbursed
Year 1994 1995 1996 1997
on 31 December 2003 but could be extended for a
further period of one or two years by mutual agreement.
Increase in share 10 000 12
800 10
000 14
000
RTP did not pay interest on the loan, as the contract
capital
stipulates that the interest payable on the first four
annual payments should be capitalised ( 24 ).
Share capital as at 22 708 35
508 45
508 59
508
31 December
(39) The
contract
concluded
in
December
1998
between
the
Source: Balance sheets of RTP.
Public Debt Stabilisation Fund and RTP was drawn up in
accordance with the guidelines set out in a joint
resolution of the State Secretaries for the Media, for the
(34) The
public
service
contracts
that
the
Portugal
concluded
with RTP provide for state participation in investments
Treasury and for Finance on 17 December 1998.
made by RTP, preferably in the form of capital
increases ( 20 ).
B. FINANCIAL POSITION OF RTP
Loan in 1998
(40) As
the
following
table
shows,
RTP
made
losses
during
the period that is subject to the Commission’s investi
(35) In
December
1998,
a
contract
was
concluded
between
gation In 1996, RTP’s financial situation deteriorated to
the Public Debt Stabilisation Fund and RTP for a
the extent that its net equity became negative.
Table 3
RTP economic and financial data 1993 to 1998
(PTE million)
1993 1994 1995 1996 1997 1998
Net profits (losses) (7
883) (19
558) (26
581) (18
512) (32
223) (25
039)
Net equity 1
557 8
071 4
269 (4
274) (20
586) (50
827)
Assets 39
418 42
262 56
078 67
654 62
340 83
843
Financial debts (*) 22
402 26
855 30
258 44
922 44
885 92
775
(*) Short-, medium- and long-term debts to credit institutions and bonds.
Source: RTP’s financial accounts.
( 21 ) Law No 7/98.
( 20 ) Clause 14 of the old public service contract from 17 March 1993
( 22 ) Article 1 of Decree-Law No 160/96.
and Clause 21 of the new public service contract from 31 December
( 23 ) A rate of 3,54 % was applied in 1999, 4,14 % in 2000; 5,05 % in
1996 concluded between the Portuguese State and RTP, see
2001; 3,62 % in 2002; and 2,95 % in 2003.
footnote 26.
( 24 ) Article 5 of the amended loan contract.

---

L 183/6
EN
Official Journal of the European Union
13.7.2012
C. RTP’S PUBLIC SERVICE OBLIGATIONS IN 1992 TO 1998
(45) The public service contracts confirm RTP’s public service
obligations. Firstly, general obligations and obligations
(41) RTP is obliged to provide
public service television.
relating to programme content are imposed on
Different laws lay down the definition, assignment and
RTP ( 29 ). RTP must provide a public television service,
financing of that service.
as part of which it has to broadcast two channels and
provide the population of mainland Portugal with general
coverage. The first channel is of a more general nature
and is required to provide more general programming.
The second channel must aim more at specific audiences
and provide educational, cultural and scientific
(42) Law
No
58/90,
which
governs
the
activity
of
television
programmes. One of the channels has to cover the
broadcasting, laid down the conditions for private broad
autonomous regions of the Azores and Madeira.
casters and the obligation on the State to guarantee
public service television broadcasting ( 25 ). As regards the
statutes of RTP, Law No 21/92 defines the main public
service obligations and the financing of that service.
(46) Secondly,
the
public
service
contracts
impose
specific
programming obligations on RTP ( 30 ). Standards are set
for programme quality (such as pluralism, impartial
information, etc.) and programme content (new fiction,
(43) Two
public
service
contracts
signed
between
RTP
and
the
sport, children, Portuguese culture, domestic news, enter
Portuguese State in 1993 and in 1996 described the
tainment). RTP must allow viewing time for specified
public service and the financing thereof in greater
entities, to support the cinema and other forms of audio
detail, (hereafter either ‘old public service contract’ or
visual production, to promote the production of
‘new public service contract’ or ‘public service contracts’,
educational or training programmes, to exchange
when both contracts are referred to) ( 26 ).
programmes with the autonomous regions of the
Azores and Madeira and to promote cooperation with
other public service television bodies in the European
Union. Furthermore, it must fulfil specific programming
obligations relating to international cooperation. For
example, it has to produce programmes for, and
Definition
broadcast them to Portuguese communities living
abroad, to Portuguese-speaking countries in Africa and
(44) Article
4
of
Law
No
21/92
provides
that
a
concession
to Macau. It is required to ensure the functioning of RTP
contract is to be concluded between Portugal and RTP
Madeira and RTP Aores and to maintain its production
and specifies the main public service obligations that
centres and delegations abroad.
must be performed under that contract. Article 4(2) of
that Law establishes the general principles that RTP has
to observe when performing its activity as concession
aire ( 27 ), while Article 4(3) thereof outlines the
obligations of the public television broadcasting
service ( 28 ).
(47) Thirdly,
the public service contracts impose specific
obligations on RTP. For example, RTP must maintain
( 25 ) Law No 58/90 of 7 September 1990 on the activity of television
audiovisual archives, introduce technological innovations
broadcasting.
in its equipment and activities, support the S. Carlos
( 26 ) On 17 March 1993, a public service contract (the old public service
contract) was signed between Portugal and RTP. On 31 December
National Theatre and to provide other services to be
1996, it was replaced by the new public service contract.
specified on an ad hoc basis.
( 27 ) RTP must: (a) respect the principles of freedom, independence, non-
discrimination and non-concentration; (b) safeguard its inde
pendence from the public authorities; and (c) adapt programmes
to quality and variety requirements in the interests of the public.
( 28 ) RTP must: (a) and (c) to contribute to enlightening, informing and
educating the population; (b) to guarantee news coverage: (d) to (h)
to make broadcasting time available for official messages, religious
Assignment
events, political parties, trade unions, the government and the
public administration; (i) to broadcast two general coverage
(48) Article 5 of Law No 58/90 assigned to RTP the
programmes, one of which should cover the Autonomous
concession for public service broadcasting for a period
Regions of Madeira and the Azores; (j) and (m) to broadcast
programmes on education, training, sport and culture; (l) to
of 15 years, renewable for a further period of 15 years
support and promote the cinema; (n) to keep audiovisual files; (o)
and covering the frequencies corresponding to the first
to exchange programmes and information with Madeira and the
and second channels. Article 4 of Law No 21/92
Azores; (p) to produce and broadcast programmes for Portuguese
provides that RTP is the concessionaire for public
communities abroad; (q) to cooperate with Portuguese-speaking
countries; (r) to ensure direct coverage of main events abroad; (s)
to maintain contacts with other European public service television
( 29 ) Clause 4 of the old public service contract and Clauses 4 and 5 of
broadcasters; and (t) to ensure that television broadcasting is in
the new public service contract.
conformity with the guidelines laid down by the competent inter
( 30 ) Clauses 5 to 8 and Clause 10 of the old public service contract and
national bodies.
Clauses 6 to 13 of the new public service contract.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/7
service television broadcasting. Clause 1(a) of the public
first stated in the old public service contract dating from
service contracts confirms that RTP is the provider of the
1993. Portugal claims that for the years 1995 to 1998 a
public service television ( 31 ).
legally independent auditor issued a favourable and
autonomous opinion on the public service reports ( 35 ).
Portugal also argues that all public service reports
during that period were accompanied by an opinion of
Control
RTP’s Board of Auditors and by an audit of the Inspector
General of Finance (Inspeco-Geral de Finanas), the latter
(49) The
public
service
contracts
( 32 ) provide for the setting
up of a Public Opinion Council (Conselho de Opinio)
being independent of RTP.
consisting of representatives from the different sections
of public opinion that may intervene in order to assess
whether RTP is complying with its general and specific
The situation as regards the external audits of the public
public service television broadcasting obligations.
service reports can be described as follows:
(50) RTP is required to provide the Minister for Finance with
(55) The 1993 and the 1994 public service reports contained
a Public Business Plan and Budget for the fulfilment of its
a compliance statement by that RTP’s public service
public service mission, (Plano de Actividades e Oramento
obligations were fulfilled, but only by RTP’s management.
do Servio Público) for the following year, accompanied by
opinions issued by RTP’s board of auditors and the Public
Opinion Council. Furthermore, it has to provide a report
(56) For the years 1995, 1996, 1997 and 1998, the public
on its compliance with its public service obligations
service report contained compliance statements by an
during the previous year (Relatório sobre o Cumprimento
external auditor independent to the company, Maia,
das Obrigaces do Servio Público, (the ‘public service
Mesquita & Associados — (Revisor Oficial das Contas), that
reports’), accompanied by an opinion of RTP’s board of
that the audit did not disclose any matters that would
auditors ( 33 ).
significantly affect the calculation of the compensation
payments to RTP referred to in those reports for those
years.
(51) The Minister for Finance and the member of the
government responsible for the media are required to
verify compliance with the public service contracts. The
(57) In 2010, Portugal submitted more comprehensive
Inspector-General of Finances is required to audit the
external audits of the public service reports for the
financial plan. Furthermore, an annual audit on the
period from 1992 to 1997 to the Commission. The
public service reports has to be conducted by an
external audits of the public service reports for that
external specialised auditor ( 34 ).
period were organised by the national media regulator,
Entidade Reguladora para a Comunicao Social (ERC). They
were carried out for that period by Pedro Roque SROC,
an external auditor, that is independent of RTP ( 36 ).
(52) The new public service contract also provides for
Portugal also provided a synthesis report summarising
sanctions to be imposed by Portugal for breach of
the audit results for all the years.
contract in the form of fines, seizure, redemption or
termination of the contract.
An external audit on the public service report was
already in existence for the year 1998. That external
(53) During
the
period
1992
to
1998,
RTP
had
external
audit for the year 1998 was carried out by BDO
audits on all its annual accounts by an independent
Binder, an external auditor the ‘BDO Binder report’) ( 37 ).
auditor.
(58) The
mandate
of
the
audits
1992-97
was,
for
each
year
in
question, to assess whether RTP fulfilled its mandate as
(54) RTP
also
had
produced
the public service reports for all the
years, with the exception of the public service report
stipulated in the public service contracts in force at the
1992, as the obligation to have external audits was
time and whether there was a correspondence between
the public service costs and the compensation payments.
The external audits listed the public service obligations
( 31 ) Clause 1 of the old public service contract stated that the aim of
resulting from the public service contracts, took into
that contract was to lay down the terms under which RTP would
provide the public television service. Clause 1 of the new public
service contract states that RTP is the sole provider of public service
( 35 ) Paragraphs 53 and 54 of the Letter of Portugal of 8 June 2010. See
broadcasting within the meaning of Article 5 of Law No 58/90 and
also paragraph 108 of the submission 7 September 2009.
of Article 4 of Law No 21/92.
( 36 ) The full name of the auditor is: ‘Pedro Roque SROC, Revisores Oficias
( 32 ) Clause 9 of the old public service contract and Clause 23 of the
de Contas, inscrita na Lista das SROC/s com no 125’, Lisbon. It is a
new public service contract.
statutory auditor registered in the official list of auditors in Portugal,
( 33 ) Clauses 15, 16, 18 and 19 of the old public service contract and
which means the auditor has to adhere to certain auditing standards
Clauses 18 and 25 of the new public service contract.
and give an independent audit view.
( 34 ) Clause 19 of the old public service contract, Clause 25 of the new
( 37 ) BDO Binder & Co. Auditoria, Impostos e Consultoria, Lisbon,
public service contract and Article 47(2) of Law No 31-A/98.
Portugal.

---

L 183/8
EN
Official Journal of the European Union
13.7.2012
account the various laws governing RTP’s public service
The public service contracts specify the criteria for calcu
obligations (for example, the Television Act No 58/90 of
lating the eligible costs for compensation in respect of
7 September 1990) as well as the Public Business Plan
each public service obligation ( 41 ).
and Budget (Plano de Actividades e Oramento do Servio
Público) and the public service reports. The external
audits examined whether the public service obligations
were respected. The reports made a comparison with
(63) On the basis of the analytical accounting system
the compensation payments by Portugal compared to
mentioned in the previous recital, RTP allocates costs
the costs established in the public service reports.
and revenues (for example, personnel and equipment)
to cover a defined number of activities (such as
management of programming, direct and indirect
programme costs, diffusion costs, emission costs,
(59) For
all
the
years
under
investigation,
i.e.
1992-97,
the
marketing costs and overheads).
audits come to the conclusion that RTP essentially
fulfilled its main broadcasting obligations. The audits
also state that ‘with regard to the correspondence
between the public service tasks provided and the
(64) The
direct
costs
of
the
different
activities
are
divided
compensation of the ‘real and actual costs’, there are
between the different cost items (for example, RTP 1,
no materially relevant distortions which affect
RTP 2, RTPi and RTP frica). The indirect costs are
compliance with the legislation in force at the time’.
allocated to the cost items on the basis of consistent
For all years, the synthesis report finds that the compen
analytical criteria (for example, the number of broad
sation payment by Portugal was less than the amounts
casting hours) ( 42 ).
indicated in every public service report. The audits are
published on the ERC website ( 38 ). Likewise did the BDO
Binder report not point to any overcompensation for the
public service provided.
(65) The
analytical
accounting
system
has
the
following
char
acteristics:
Financing
(a) under the public service contracts, only the net
(60) Article
5
of
Law
No
21/92
confers
on
RTP
the
right
to
operating costs may be compensated for in
receive compensation for its public service obligations.
accordance with the method described in the public
That right is confirmed in the public service contracts.
service contracts. The financial cost, the extraordinary
expenditure and provisions not directly related to an
activity are excluded from compensation ( 43 );
(61) In addition to the system of annual compensation
payments (see recital 19 above), the public service
contracts provide for funding by Portugal for:
(b) in order to calculate the net reimbursable operating
costs, RTP must deduct the operating revenues
derived from each public service obligation;
(a) the payment of specific services under agreements to
provide services signed or to be signed by the public
administration and RTP ( 39 );
(c) under the old public service contract, no compen
sation was allowed for the general public service
obligation to operate RTP 1 and RTP 2 and to
(b) State participation in all investments made by RTP,
cover the autonomous regions with one of the chan
particularly those for the infrastructures required for
nels ( 44 );
the operation of the production and broadcasting
centres in the autonomous regions of Azores and
( 41 ) Clause 12 of the old public service contract lays down in detail
Madeira, the audiovisual archives and RTP’s inter
which costs may be compensated for and how they are to be
national broadcasts and other technological
calculated: the coverage differential (the difference in costs borne
by RTP Channel 1 and the costs borne by the largest private
investments that RTP is required to make ( 40 ).
television operator), the operating deficit in the Autonomous
Regions, the deficit in running the audiovisual library, the oper
ational cost of RTP-International, the cost of operating the
structure for cooperation with the Portuguese-speaking African
(62) In order to determine the costs and revenues of the
countries (PALOPs), the cost of allowing viewing time for certain
public service obligations that qualify for compensation
entities, the cost of delegations and correspondents, and the costs of
payments, RTP applies an analytical accounting system.
the S. Carlos National Theatre Foundation. Clause 15 of the new
public service contract lays down in detail which costs can be
compensated for and how they are to be calculated. The items to
( 38 ) http://www.erc.pt/pt/estudos-e-publicacoes/auditorias-ao-servico-
be covered are: (1) the operating costs of RTP 1 and RTP 2; (2)
publico-de-radio-e-televisao
specific services referred to in Clause 7(a) to (l); and (3) the coverage
( 39 ) Clause 13 of the old public service contract and Clause 20 of the
differential.
new public service contract.
( 42 ) Information provided by Portugal by letter of 31 March 1999.
( 40 ) Clause 14 of the old public service contract and Clause 21 of the
( 43 ) Clause 14(2) of the new public service contract.
new public service contract.
( 44 ) Excluding the cost associated with the coverage differential.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/9
(d) under the new public service contract, the operating costs of RTP 1 and RTP 2 can be
compensated for, but no extra compensation is allowed in the event of the real net operating
costs of RTP 1 and RTP 2 exceeding the planned cost ( 45 ).
(66) RTP has reported on the net cost of providing the public service in the annual public service reports
in line with the cost calculation method described in recitals 60-65. The following table gives an
overview of the costs of each public service activity for which RTP is entitled to receive compensation
payments.
Table 4
Net reported and reimbursable costs of the public service
(PTE million)
1992 1993 1994 1995 1996 1997 1998
Teletext
112,9 86,8
Operation of RTP International 882,3 1
517,4 1
826,9 1
890,8 2
059,6 3
999,1 3
712,9
RTP frica
—
—
—
— 654,7 1
332,0
Direct broadcasting by RTP 1 to Azores
—
—
—
—
— 76,8 295,4
and Madeira
Audiovisual archives 509,1 241,6 402,7 492,7 184,9 909,4 672,1
Cooperation with Portuguese-speaking 186,9 128,4 172,2 148,6 144,9 202,4 200,3
countries in Africa
Coverage differential 406,7 1
312,8 1
314,2 1
050,3 1
050,0 622,6 208,6
Delegations/correspondents 797,8 658,2 681,1 642,7 583,2 457,2 211,0
S. Carlos National Theatre Foundation 50,0 55,0 60,0 60,0 60,0 60,0
Cinema promotion 215,0 95,0 27,5 156,5 391,1 352,8
Operation of autonomous regional 3 453,4 3
486,0 3
685,9 3
696,1 3
846,6 3
459,2 2
855,2
centres
Broadcasting for specific entities 482,0 350,6 151,1 94,6 80,8
Sport TV (*)
– 440,0
Net operating costs of RTP 1 16
946,1 11
916,6
Net operating costs of RTP 2 9
050,6 10
080,6 8
637,6
Total net operating costs 6
718,2 7
960,0 8
384,1 8
103,3 17
217,1 37
972,1 30
101,3
(*) Although Sport TV is not a public service activity eligible for compensation, RTP deducted the profits of Sport TV from the public
service cost. The basis for this deduction is Article 47(3) of Law No 31-A/98 of 14 July 1998, which provides that profits made by RTP
from participation in other channels are to be used for the financing of public service initiatives.
Source: Portuguese authorities and the public service reports.
(67) The
following
table
gives
an
overview
of
RTP’s
investments
in
equipment
for
its
public
service
activities. It presents both the real investments in public service activities, as shown in the annual
financial accounts, and the investments reported in the public service reports. The real investments in
public service activities were higher than the investments reported in the public service reports.
Table 5
Investments in public service activities
(PTE million)
1992 1993 1994 1995 1996 1997 1998 Total
Financial accounts 2
632,6 2
102,0 2
763,9 992,7 1
480,4 4
037,4 6
054,2 20
063,2
Public service reports 2
327,3 98,0 1
975,1 154,4 28,1 4
037,4 6
127,8 14
748,1
Difference 305,3 2
004,0 788,8 838,3 1
452,3
0 –
73,6 5
315,1
Source: RTP financial accounts and public service reports.
( 45 ) Clause 19(1) and (3) of the new public service contract. The new public service contract provided that the operating
costs of RTP 2 could be compensated for retroactively from 1 January 1996.

---

L 183/10
EN
Official Journal of the European Union
13.7.2012
Objective of the measures
of Law No 21/92 RTP enjoys a general exemption from
the payment of taxes and rights for any kind of
(68) The
objective
of
the
ad
hoc
measures
was
to
compensate
inscription and registry.
RTP for the public service obligations imposed on it and
to finance its investments.
(74) TVI
commented
that
RTP
was
also
exempted
from
the
payment of costs linked to the publication of the notarial deed.
Possible effects of the measures
(69) In
Portugal,
the
public
service
operator
was
not
selected
as a result of a competitive procedure in which all
(75) On
the capital injections in the period 1994 to 1997, SIC,
interested undertakings had the opportunity to state the
ACT, the Association of commercial broadcasters, the
amount of compensation they would require to operate a
Italian commercial broadcaster Mediaset and TVI
public service television broadcasting concession. RTP
commented that no rational shareholder would have
was appointed by the Government to provide public
increased the capital of a company of the characteristics
service television.
of RTP. The referred capital injections were made in a

severely deficit company without a coherent restructuring
plan to make the undertaking viable.
(70) Since
1992,
both
commercial
and
public
service
broad
casters have been active in the Portuguese television
(76) Furthermore,
as
regards
the
loan
in
1998,
SIC
argued
market. Apart from RTP, the commercial broadcasters
that taking into account the fact that RTP was ‘tech
SIC and TVI are licensed to broadcast television
nically bankrupt’ in 1996, no financial institution
channels. SIC was the first private operator to start
would have approved such a loan to RTP.
broadcasting on 6 October 1992. The measures in
favour of RTP could have the effect of distorting
competition in the television broadcasting market.
(77) SIC,
in
particular,
stressed
the absence of external audits,
which should have taken place on a regular basis. It also
referred to flaws found for the year 1998 as described in
III. COMMENTS FROM INTERESTED PARTIES
the BDO Binder report for that year, the only existing
external audit, which the Commission should have taken
(71) Following
the
initiation
of
the
Commission’s
investi
into account. It pointed to several criticisms in the BDO
gation procedure in this case several interested parties
Binder report for 1998, including, inter alia, an excess of
commented on the measures referred to in recitals 21-
the advertising limits for RTP television broadcasts. SIC
39. The following recitals provide an overview of the
points out that according to the public service contracts,
relevant comments received from the interested parties,
RTP is required to respect advertising limits and can e.g.
categorised by measure.
only show a certain number of minutes of advertising
per hour. According to the findings in the BDO Binder
report, this was not respected for the year 1998. SIC also
quoted the finding in that report that certain assets had
(72) Only comments pertaining to the issues left open
not been accounted for, which SIC seems to take as
following the judgment of the Court in Case T-442/03
proof that the respective investments for these assets
are referred to in this Section, namely those relating to
have not been made.
the exemptions from notarial and registration charges
and publication costs, as well as in relation to the
other measures (the agreement with the social security
scheme in 1993, capital injections in the period 1994 to
(78) Following the annulment of Article 1 and part
of
1997 and a loan in 1998), as referred to in Article 1 of
Article 2 of Decision 2005/406/EC by the Court in
Decision 2005/406/EC. These comments of interested
Case T-442/03, SIC argues that the Commission must
parties include views submitted after the Commission’s
in this Decision also take into account the report of
first opening decision of 15 November 2001 as well as
the Portuguese Court of Auditors (Tribunal de Contas,
comments received after the publication of the invitation
hereafter referred to as Court of Auditors) of June
to submit comments on 24 December 2008 (
2002 (No 8/2002), which according to SIC had the

46 ).
objective duty to examine RTP’s management and its
provision of public television service in terms of effec
tiveness, efficiency and economy and which dealt with
(73) SIC
and
TVI
argued
that
the exemptions from notarial and
the period 1997 to 2000. However, that period was
registration charges are an exception from the rules that
extended to 1993. Summarising the findings of the
are normally applicable under Portuguese law for any
report, SIC underlines that there was a lack of strategy
modification in company statutes. SIC commented that
for defining RTP’s programmes and internal board
the scope of the exemption is not limited to the trans
directives concerning cost limits were not observed and
formation of RTP in 1992. On the basis of Article 11(2)
annual budget drawn up were not complied with. SIC
also stated that the Court of Auditors points out that
Portugal has not yet specified that the award of State
( 46 ) See footnote 2. Comments from interested parties on other
measures can be found in recitals 74 to 84 of Decision
aid is related to RTP’s actual compliance with its public
2005/406/EC.
service obligation.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/11
(79) SIC pointed to the Portuguese Court of Auditor’s general
amended, suspended or revoked by acts having an
findings on the public service contracts, which give an
equivalent ranking within the hierarchy of legal acts.
incentive to RTP to disregard efficiency and effectiveness
Portugal points out that the principle of the equivalence
in RTP’s management, which goes along with a vague
of acts is provided for in the Portuguese Constitution
and non-specific public service remit.
(currently Article 112(5) or Article 115(5) of the Consti
tution at the time when RTP was transformed in 1992)
which states that ‘no law shall create other categories of
legislation, or grant other types of act the power to
IV. COMMENTS FROM PORTUGAL
interpret, integrate, modify, suspend or revoke any of
its provisions with any external effect’. The application
Exemption from notarial charges and registration
of this principle to the transformation of public under
charges/publication costs
takings is supported by legal authors ( 47 ). Portugal also
refers to a number of judgments of its Constitutional
(80) On
the
exemption
from
notarial
charges,
registration
Court which reiterate the interpretation that a law may
charges and publication costs, Portugal agues that, since
only be interpreted by another law (
the transformation of the public undertaking into a

48 ) and not by an act
with a different and inferior ranking within the hierarchy
public limited company (sociedade anónima) had to be
of legal acts.
carried out by legislative act, no basis existed for the
collection of the taxes and emoluments related to formal
isation by notarial deed of that transformation, nor to its
registration and publication.
(83) Portugal
argues
that
the
transformation
of
RTP
into
a
public limited company by Law No 21/92 was carried
out in compliance with that general scheme of
Portuguese law and could not lawfully have been
(81) The transformation of RTP into a public limited
carried out simply under private law in the form of a
company was carried out in 1992 in order to bring it
notarial deed. Portugal also quotes several examples of
under private law and the way in which it operates closer
other public undertakings transformed by legislative act
to that of private operators. It was considered necessary
into public limited companies ( 49 ).
to equip RTP with the means and conditions to allow it
to best fulfil its public service objectives in a market that
was increasingly open to competition. The aim was to
give RTP’s operations and management the same flexi
(84) Portugal refers to Decree law No 267/76 of 8 April 1976
bility afforded to ‘normal’ companies, operating under
which established for the first time a general scheme for
private commercial law. According to Portugal, the
public undertakings. That decree-law established that
public limited company format was less cumbersome
public undertakings could only be created by way of a
than the State control procedures that previously
decree-law, which must approve their statutes. That
applied to RTP as a public undertaking, thus offering it
applied also to subsequent alterations of the statutes.
better conditions for developing television channels and
their programming.
(85) Portugal
further
refers
to
Law
No
84/88
of
20
July
1988
(see recital 25 of this Decision) which stipulated that a
Temporary tax exemption provided for in Article 11(1) of Law
decree-law was necessary to transform public under
No 21/92
takings into public limited companies and that it also
should approve the statutes of the public undertaking.
(82) Portugal
argues
that
the
transformation
of
RTP
by
law
in
Portugal consequently concludes that for the trans
1992, with the consequence that no ‘notarial deed’ for the
formation of RTP in 1992 first a decree-law was
formalisation of that act was necessary, was in line with
necessary and that secondly also the statutes could only
the nature and logic of the Portuguese legal system. In
be approved by law and not by notarial deed.
that regard Portugal recalls that RTP had been established
as a public undertaking in 1975 by way of legislation,
namely, by the Decree-Law No 674-D/75. Therefore, as
specifically required by Law 84/88 that governed the
(86) In addition,
Law No 58/90 of 7 September 1990
transformation of public undertakings into public
required public service television to be provided by
limited companies, such acts had to be carried out also
operators owned exclusively or in majority by public
by way of legislation.
entities, and the statutes of such operators had to be
approved by decree-law.
(
Pursuant to Article 3(2) of Law No 84/88, which is a

47 ) See, for instance, Rui Gerra da Fonseca: Having established the legis
lative nature of the statutes of a public undertaking based on a
general law on the transformation of public undertakings
decree law, it is unconstitutional for them to be amended by any
(see above recital 25), the legislative act that provided for
instrument other than a decree law, just as rules permitting their
the transformation of the public undertaking had to
amendment by a mere instrument of private law are also uncon
approve the statutes of the public limited company
stitutional, Autonomia Estatutária das Empresas Publicas e Descentral
resulting from the transformation. This was, moreover,
izao Administrativa, Coimbra 2005.
( 48 ) Judgment No 224/95 of 26 April 1995 and Judgment No 576/96
in line with the principle of the equivalence of acts,
of 16 April 1996.
according to which legislative acts may only be
( 49 ) Submission by Portugal of 8 June 2010.

---

L 183/12
EN
Official Journal of the European Union
13.7.2012
(87) As
regards
the
‘registration charges’, Portugal observes that
(91) Secondly, Portugal claims that the formal authorisation
while the registration of the statutes approved by Law No
of this settlement by the Portuguese government did not
21/92 was exempted from such charges, the registration
confer a specific financial advantage on RTP compared to
formalities still had to be carried out ‘ex officio’. Regis
other undertakings under similar circumstances under
tration formalities were considered necessary because the
Decree Law No 411/91. Portugal claims that the dero
Commercial Registration Code (Código do Registo
gation provided for in Article 2(1)(d) applied to RTP, as
Comercial) requires acts relating to companies to be
RTP was the subject of state intervention and experienced
registered and published. According to Portugal, the
various vicissitudes under the management of an admin
value of the registration charges is 11 000 contos ( 50 )
istrative commission appointed by the Government in
which equals PTE 11 000 000.
1977 ( 51 ). Portugal argues that the general nature of the
derogation is underlined by the fact that an arrangement
has also been made with one of the interested parties on
the basis of Decree Law No 411/91.
(88) Regarding
the publication requirement, Portugal stresses
that since RTP’s statutes were published in the Diário
da República as an Annex to Law No 21/92 which
approved them, that requirement was fulfilled.
Loan in 1998
(92) As regards the loan, Portugal commented that the
technical conditions attached to it provided that the
financial operation should carry interest calculated
according to market criteria.
Permanent tax exemption in accordance with Article 11(2) of
Law No 21/92
(89) With
regards
to
SIC’s
comments
concerning
Article
11(2)
of Law No 21/92, Portugal replied that the Portuguese
legislator did not reserve specified tax benefits in business
Capital injections in the period 1994 to 1998
transformation or restructuring operations for public
undertakings. The exemption was based on Decree-Law
(93) Portugal argued that the capital injections in the period
1994 to 1998 constituted an instrument for financing
No 404/90. Portugal argues that RTP was not exempted
the costs of providing a public television service, together
from the payment of registration charges on the basis of
with payment of the compensatory allowances.
Article 11(2) of Law No 21/92, outside the 1992 trans
formation. Portugal also argues that the classification of
Article 11(2) of Law No 21/92 as a permanent
exemption from charges is due to a linguistic misunder
standing. Instead of stipulating that the decree law was
sufficient for all legal purposes and any acts necessary to
The financing model/overcompensation
regularise ‘the situation’ (that is to say the 1992 trans
(94) According
to
Portugal,
the
financing
model
chosen
to
formation, own emphasis added), Article 11(2) provided
compensate RTP for its public service costs proved
that RTP would be exempted from any charges and
inadequate and led to trading deficits. Firstly, the
fees that gave effect to the acts in the property registers.
compensatory allowances were always calculated at
This meant, according to Portugal, that RTP was not
below the real needs of public service television
exempted from registration charges outside the context
financing. Secondly, Portugal systematically paid the
of the 1992 transformation operations except for those
allowances late. RTP then had to resort to bank
concerning the 1992 transformation. Portugal also
financing in order to meet its operating expenditure
provided documentation for several situations in which
but could not include the interest and amortisation
RTP has paid registration charges.
charges in the calculation of the public service cost.
Thirdly, RTP had to pay value added tax (VAT) to the
State on the allowances, thereby reducing the net amount
of the compensatory allowances.
Settlement between the Social Security and RTP on
the rescheduling of debt and the waiver of interest
(90) Portugal claims that the background of the initial
(95) Portugal claims that: (i) the tax exemptions (i.e.
settlement between the Social Security administration
exemption from notarial deed charges, registration
and RTP on the rescheduling of debt and the waiver of
charges and publication costs); (ii) the facilities for the
interest and fines was a legal dispute on the constitu
payment of the tax on the use of the broadcasting
tionality of Implementing Decree No 12/83 regarding
network; (iii) the rescheduling of the debt to the social
mandatory social security deductions on remuneration
security scheme; (iv) the payment for the hiving-off of
for overtime. The settlement acknowledged RTP’s inter
the television network; (v) the protocol on cinema
pretation that the remuneration was not subject to social
security deductions, which was supported by a tax expert.
( 51 ) Law No 91/A/77 annulled the 1976 Statutes of RTP and it
provided that RTP would be governed by an Administrative
( 50 ) Submission by Portugal 17 June 2011.
Commission.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/13
promotion; and (vi) the loan taken out by RTP in 1998
and NN 31/06 and those decisions were not challenged
do not fall within the concept of State aid. As regards the
in Court. Portugal argues that, in particular, the
compatibility of the other measures, Portugal argued that
Commission already took the Court of Auditors Report
they should be regarded as compensation for public
No 8/2002 into account in Decision NN 31/06. It
service costs and therefore not as State aid ( 52 ) or, alter
further underlines that the Commission concluded in
natively, their compatibility with Union legislation should
Decision NN 31/06 that RTP’s financial situation from
be assessed in the light of Article 86(2) of the EC Treaty
1992 to 1998 resulted from the chronic under-financing
(now Article 106(2) TFEU).
of its public service activities. In Decision NN 31/06, the
Commission based its finding on an external report,
namely the PriceWaterhouse Cooper report of 2005
(96) As
regards
calculation
of
the
overcompensation,
Portugal
and on the externally audited annual accounts of RTP
argued that:
which Portugal considers to be the only relevant
accounts.
(a) the inclusion in 1996 of the operating costs of RTP 2
as reimbursable public service costs was based on the
new public service contract, according to which
(98) Portugal
also
reiterates
that
the
public
service
reports
for
compensation for RTP 2’s operating costs under the
the period from 1993 to 1998 were audited by RTP’s
Contract took effect from 1 January 1996
company auditors ( 55 ). However, Portugal later submitted
onwards (
external audits of the public service reports for the period

53 );
from 1992 to 1998, together with a final summarising
report covering all of those years. The external audits
(b) the loan of PTE 20 000 million should not be
were organised by the independent Media Authority,
regarded as compensation since it was granted on
Entidade Reguladora para a Comunicao Social (ERC),
market terms;
which asked the external auditors, Pedro Roque ( 56 ) to
carry out the external audits.
(c) the capital increases were also designed to finance
investments and not simply to provide financial
(99) Portugal
replied
in
greater
detail
to
some
of
SIC’s
alle
compensation for reimbursable public service costs.
gations on specific points. As regards SIC’s allegation that
The State’s obligation as shareholder to participate in
according to the BDO Binder report, the opinion of
the financing of investments deemed to be necessary
Public Opinion Council was missing, Portugal emphasises
is laid down in the public service contracts ( 54 );
that that opinion did not extend to RTP’s public service
report. While the opinion of that body was warranted, in
the old public service contract, it had not become a
(d) the compensation payments were subject to VAT,
legally binding requirement. Also, the new public
with the result that the net value received by RTP
service contract did not require the opinion of that
was lower;
body to be given on the public service report.
(e) under the new public service contract, the public
(100) As regards SIC’s allegations that the BDO Binder report
service costs were reimbursable only up to the
for the year 1998 included some EUR 53 million of
allotted budget.
tangible assets, although no inventory existed for such
assets, Portugal has confirmed that the respective
Taking into account the matters the foregoing, Portugal
investments have been made for those assets. The fact
that no inventory was originally drawn up for those
concluded that the financial compensation for RTP’s
assets (although except for 4 million the value of such
public service obligations should not be regarded as
assets could later be identified and inventory could retro
excessive or inappropriate.
actively be drawn up), does not mean that no investment
had been made. The external auditor confirmed balances
Absence of external audits
and figures and transaction with third parties.

(97) As regards the absence of external audits, Portugal argues
that the Commission had already taken a position on
(101) As regards SIC’s allegation that according to the BDO
RTP’s financial situation, also covering the period from
Binder report for the year 1998 advertising times limits
1992 to1998, without requiring an external audit of the
had been exceeded, Portugal pointed out that this would
public service in its Decisions of 2006 in case E 14/05
in no way involve a reduction in the financial compen
sation. The reason for that is that the amounts, which
( 52 ) See Judgment of the Court of Justice of 22 November 2001 in Case
RTP received from the excess of advertising times was
C-53/00 Ferring SA v Agence centrale des organismes de sécurité sociale
way below the under-financing of that year. In any event,
(ACOSS) [2001] ECR I-9067.
Portugal confirmed that the total advertising revenues
( 53 ) Clauses 3 and 4 of the new public service contract.
(including revenues from the excess of advertising
( 54 ) Clause 14 of the old public service contract and Clause 21(3) of the
new public service contract stipulate that: ‘Participation in the
abovementioned investments shall be covered preferably by the
( 55 ) See paragraph 108 of the letter from Portugal of 7 September
first contracting party and as shareholder in the form of an
2009.
increase in capital.’.
( 56 ) See footnote 36 of this Decision.

---

L 183/14
EN
Official Journal of the European Union
13.7.2012
limits) were taken into account when calculating the
interest waiver and the capital injections 1994-97 will be
financing need, i.e. the compensation for the fulfilment
examined. Likewise, the presence of State resources in the
of the public service obligation.
exemptions from notarial deed charges, registration
charges and publications costs will be assessed.
(102) Portugal claims that the 8/2002 report of the Portuguese
Court of Auditors should not be taken into account in
this Decision as the judgment of the Court in Case T-
(105) State resources are involved in the exemption notarial
442/2003 only found an objective weakness of the
deed charges, registration charges and publications costs, as a
information contained in the public service reports,
loss of tax revenue is equivalent to the consumption of
which were not accompanied by an external audit.
State resources in the form of fiscal expenditure ( 57 ).
Portugal emphasises that the 8/2002 report of the
Court of Auditors only relates to the years 1997 to
2000 and not the whole period covered by the current
(106) As regards the rescheduling of debt due to the social security
investigation. The years 1993 to 1997 were only covered
scheme and the waiver of interest for late payment, the
in the report for the purpose of a general description of
Commission considers that the body responsible for
RTP’s financial situation and restructuring needs, but do
social security scheme cannot be regarded as an under
not constitute the very subject matter of the report. The
taking. It does not carry out an economic activity but is a
report purpose is to assess RTP’s management, the role of
public body with the task of administering social secur
the State as a shareholder and the provision of the public
ity ( 58 ). Furthermore, the authorisation for the debt
broadcasting service.
rescheduling was given not by the social security
scheme itself but by a joint decree of the State Secretaries
for Finance and Social Security and the Deputy State
Portugal claims that the Court of Auditor exceeded its
Secretary to the Deputy Minister. With the authorisation,
mandate of auditing public finances and instead entered
the State did forgo income since normally it would have
into an analysis of efficacy and cost effectiveness of the
received PTE 1 206 million in interest on the outstanding
public expenditure. The report has, in the view of
debt. Therefore, it is clear that State resources were
Portugal, no relevance except that it constituted an inde
involved and that the measure is attributable to the State.
pendent audit on the company, confirmed the accounts
of Portugal and detected no illegality. Portugal argues
that the Commission should take into account in this
(107) The capital increases granted to RTP were provided by the
Decision the 20/98 Report of the Court of Auditors
State directly from the public budget. It is therefore clear
instead of the 8/2002 audit report, as the 20/98 audit
that such funding constituted State resources within the
report covers the RTP ‘s economic and financial situation
meaning of Article 107(1) TFEU.
for the period from 1994 to 1996. The 20/98 audit
report concluded that the criteria used to finance the
public service are more clearly defined in the new
public service contract than under the old public
(108) The Commission cannot accept the claim by Portugal
service contract, which is disputed by the later 8/2002
that no State resources are involved in the loan to RTP.
Report.
The concept of State resources also includes advantages
granted by bodies designated or established by a Member
State for that purpose ( 59 ). The loan contract of 1998
V. ASSESSMENT OF THE MEASURES
was concluded between RTP and the Public Debt Stabili
sation Fund, a fund managed by the Public Debt
State aid nature of the measures
Management Institute. A legal act determines that the
Institute is subject to the authority and supervision of
(103) In order to ascertain whether the ad hoc measures imple
the Minister for Finance
( 60 ). It may therefore be
mented by Portugal for RTP constitute State aid within
concluded that the funds granted by the Public Debt
the meaning of Article 107(1) of the Treaty, the
Stabilisation Fund should be regarded as State resources.
Commission has to assess whether those measures:
(a) are granted by the Member State or through State
(109) That measure can be considered as being directly
resources;
attributable to the State, since a resolution agreed on
17 December 1998 between the Secretary for State for
the Media, the Treasury and Finance laid down the
(b) are capable of distorting competition;
conditions of the contract.
(c) favour certain undertakings or the production of
( 57 ) Point 10 of the Commission notice on the application of the State
certain goods;
aid rules to measures relating to direct business taxation (OJ C 384,
10.12.1998, p. 3).
( 58 ) Judgment by the Court of Justice of 17 February 1993 in Joined
(d) affect trade between Member States.
Cases C-159/91 and C-160/91 Christian Poucet v Assurances Générales
de France and Caisse Mutuelle Régionale du Languedoc-Roussillon [1993]
ECR I-637.
(
Involvement of State resources

59 ) Judgment of the Court of Justice of 17 June 1999 in Case

C-295/97 Industrie Aeronautiche e Meccaniche Rinaldo Piaggio SpA v
International Factors Italia SpA (Ifitalia), Dornier Luftfahrt GmbH and
(104) In the following, the State aid character of the loan of
Ministero della Difesa [1999] ECR I-3735, paragraph 35.
1998, the settlement on the rescheduling of debt and
( 60 ) Article 1 of Decree-Law No 160/96.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/15
The favouring of certain undertakings
(114) Exemption from the notarial deed and the notarial costs: The
Commission finds that the transformation of RTP into a
(110) Exemption from notarial deed charges, as well as registration
public limited company and the approval of its statutes
charges and publication costs: As regards the exemption
by way of legislation instead of by a notarial deed
from notarial deed charges, registration charges and
complies with the logic and nature of the Portuguese
publication costs it should be assessed whether that
legal system. The transformation into a public limited
measure conferred a general tax exemption that
company was done in order to give RTP a more
benefited RTP or whether it applied specifically to RTP.
flexible company form and thereby put it on an equal
In the following recitals the Commission distinguishes
footing with private operators. The fact that this trans
between the temporary exemption provided for in
formation was done by law, rather than by a notarial
Article 11(1) of Law No 21/92 and the permanent
deed, was not an attempt to circumvent the requirement
exemption provided for in Article 11(2) of Law No
of a notarial deed, but resulted from the general principle
21/92.
of Portuguese law that legislative acts may only be
modified by equivalent legislative acts.
Temporary exemption in accordance with Article 11(1) of Law
No 21/92
Material selectivity
(115) Under that principle of ‘equivalence of acts’, a law may only
be repealed, suspended or modified by a legal act which
(111) The Commission finds that the exemption from the
is of the same hierarchical rank as the constitutive act
necessity of a notarial deed, registration and publication
and not by an act which has a lower rank in the
costs conferred an advantage in favour of RTP by
hierarchy of laws. This principle was introduced into
relieving it of charges that it would otherwise have to
the Portuguese Constitution in 1982, that is to say,
bear from its own budget.
long before the transformation of RTP in 1992 took
place. Article 115(5) of the Portuguese Constitution in
its form in force at the time of RTP’s transformation
(112) That advantage is also materially selective by being
provided that no law should: ‘create other forms of legis
granted, as Article 11(1) of Law No 21/92 demonstrates,
lation or grant other types of act the power to interpret,
only to RTP. The fact that that law might reaffirm, as
integrate, modify, suspend or revoke any of its provisions
argued by Portugal, the application of a more general
in such a way to produce effects in relation to third
law, namely Law No 84/88, does not change this
parties’. As RTP was nationalised in 1975 by an act of
finding. Law No 84/88 refers to public undertakings
legislation, namely by Decree-Law No D 674-D/75, its
and provides that such undertakings may be transformed
transformation into another legal form could again only
into public limited companies by way of a decree-law.
be achieved by way of a decree-law, or by a law which
However, the fact that that law refers to ‘public under
has an equivalent or even higher rank than that of a
takings in general’ does not affect the material selectivity
decree-law. There is also nothing to suggest that RTP’s
found in Article 11(1) of Law No 21/92 in favour of the
original nationalisation in 1975 was carried out in order
specific company RTP. In any event, an exemption for
to circumvent the applying to companies governed by
only public undertakings would likewise constitute a
private law and created a benefit for the company.
materially selective measure for that group of under
takings (compared to private undertakings), of which
RTP forms part.
(116) There is no evidence to suggest that all the other laws in
place before RTP’s transformation (see recitals 84 to 86
Nature and logic of the Portuguese legal system
of this Decision) were for the purpose of creating a
pecuniary advantage for public undertakings by
(113) State measures can however, despite being materially
avoiding notarial deeds (and the respective costs)
selective, not fall within the notion of a selective
applying to private transactions. In particular, Law No
measure within the meaning of Article 107(1) TFEU, if
84/88 which allowed public undertakings to be trans
the State measure, instead of derogating from the normal
formed into public limited companies by decree-law,
application of the system becomes an inherent part of
reflected the constitutional and legal principles in force
it ( 61 ). It is therefore necessary to examine whether the
at the relevant time.
measure was compatible with the nature and logic of the
Portuguese legal system to transform the public under
taking RTP into a public limited company by way of
legislation or whether resource to legislation for the
purpose of transforming RTP was chosen in order to
(117) Conclusion: Taking those matters into consideration, the
confer an advantage to it in relation to other under
exemption from the requirement to carry out the RTP
takings. In line with the approach by the Court in its
transformation via a notarial deed (and thus incur the
judgment, the Commission will in the following
respective costs) does not constitute State aid within
distinguish between the exemption from notarial costs
the meaning of Article 107(1) TFEU.
on the one hand and registration and publication costs
on the other hand ( 62 ).
( 61 ) See paragraph 64 of Judgment in Case T-442/03,
(118) Exemption from registration charges and publication costs: It is
( 62 ) See paragraph 51 of Judgment in Case T-442/03.
necessary to assess whether RTP enjoyed a benefit by not

---

L 183/16
EN
Official Journal of the European Union
13.7.2012
paying any costs linked to the registration of the
justified as a legitimate compensation for the costs of the
company in the commercial registry and the publication
provision of a service of general economic interest costs
of the notarial deed. In accordance with Portuguese law
under Article 106(2) TFEU.
in force at the time, a notarial deed which formalised the
setting up of a company governed by private law and its
articles of association had to be published in the Diário
Permanent exemption in accordance with Article 11(2) of Law
da República by the Registrar in charge of the
No 21/92
Commercial Registry in order to make third parties
aware of the contents of those documents. RTP did not
(121) Portugal claims that Article 11(2) of Law No 21/92 does
incur these publication costs since the mandatory
not actually grant a permanent exemption to RTP, but
publication in the Diário da República of Law No
that it was only intended to cover the same situation as
21/92 ensured that the act of transformation of RTP
before in relation to the temporary exemption, namely
and the contents of its new articles of association were
the transformation of RTP into a public limited company
afforded the necessary publicity.
in 1992. Portugal also claims that on several occasions
RTP paid notarial registration charges. However, the
wording of Article 11(2) of Law No 21/92 covers all
further inscription, registration or annotation acts
(119) There is no indication that the Portugal chose to
which, in accordance with that Article, may be effec
transform RTP into a public limited company by way
tuated free of charge for an unlimited amount of time.
of Law No 21/92 in order to grant RTP an advantage
in the form of savings in registration and publication
costs. It was rather that a second publication of RTP’s
(122) Such a permanent exemption also confers an advantage
statutes would have been entirely meaningless as the
on RTP by relieving it of charges which it otherwise
transparency and publicity requirements were already
would have to bear from its own budget. The
fulfilled through the publication of Law No 21/92 in
argument by Portugal that to its knowledge Article 11(2)
the Diário da República. While the registration is done
of Law No 21/92 has never been applied and RTP paid
with a view to later publication and the two measures are
all necessary charges, is evidence which is relevant in a
linked, it is questionable whether the exemption from
potential recovery of State aid, but does not alter the
registration charges can also be justified by the nature
finding on the provision’s wording.
and logic of the Portuguese legal system and the
mandatory conversion of RTP by way of legislation.
Portugal does not dispute that the registration was still
(123) That advantage is also selective, as Law No 21/92 refers
required by the Commercial Companies Code. As
to RTP. Portugal cannot claim that Law No 21/92 is the
Portugal stated: ‘registration was not dispensed with, it
mere application of a general rule of Portuguese law. In
was only that no deed was needed, but that the decree-
particular, Articles 1 and 2 of Decree-Law No 404/90
law constituted a sufficient document for registration
cannot be used in order to prove the absence of selec
purposes’. This also follows from Article 3(3) of Law
tivity as the decree-law deals with acts of concentration
No 84/88, (see recital 25 of this Decision). In addition,
and, thus, does not cover this Case which concerns the
Portugal emphasised that in order for RTP to register in
transformation of a public undertaking into a public
the future all other acts relating to the company, the fact
limited company ( 64 ).
of its creation (i.e. the result of the 1992 transformation
into a public limited company) needed to be regis
tered ( 63 ) If however, registration is necessary, then the
(124) Contrary to a temporary exemption from registration
Commission sees no reason why RTP should not have to
charges, a permanent exemption cannot also be
bear the corresponding charges.
justified by the equivalence of acts doctrine which, due
to the legislative adoption process, dispensed with the
requirement of a notarial deed and its publication
when RTP was transformed in 1992. Compliance with
(120) Conclusion: It should be concluded that the exemption of
RTP from the requirement of a notarial deed (including
the nature and logic of the Portuguese legal system could
notarial costs), as well as the exemption from the
be accepted for the temporary exemption because in the
requirement for publication and the respective
concrete case of RTP’s transformation into a public
publication costs according to Article 11(1) of Law No
limited company could only be achieved, as demon
21/92, do not constitute State aid within the meaning of
strated, by a decree-law. However, the wide scope of
Article 107(1) TFEU.
Article 11(2) of Law No 21/92 does not preclude that
exemptions from notarial requirements (and costs) would
be possible for other situations than the 1992 trans
formation of RTP into a public limited company. It is
The exemption from registration charges according to
sufficient to state that a permanent exemption in favour of
Article 11(1) of Law No 21/92 does constitute State aid.
one company (or one group of companies such as public
limited companies) from various registration charges can
never be within the nature and logic of a legal
system ( 65 ).
However, as referred to later in recitals 160 and 161 of
this Decision, these exemptions would, in any event, be
( 64 ) See paragraphs 75 to 77 of Judgment in Case T-442/03.
( 65 ) See also judgment of the Court of 8 November 2001 in C-14/99,
( 63 ) See paragraphs 214 to 221 of the submission by Portugal of 8 June
Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer Zementwerke
2010.
GmbH v Finanzlandesdirektion für Krnten [2001] ECR I-8365.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/17
Conclusion: It should be concluded that the permanent
a general regime under Law No 411/91, as RTP did not
exemption for RTP resulting from Article 11(2) of Law
meet the criteria laid down in that Law for such auth
No 21/92 constitutes State aid within the meaning of
orisation. Therefore, the measure was applied in a
Article 107(1) TFEU.
selective manner to RTP.
(125) Social security settlement (debt rescheduling and interest
(130) By granting the debt rescheduling, the Portugal should
waiver): After considering the comments from third
have acted in the same way as a public or private creditor
parties and Portugal, the Commission concludes that
that seeks to recover sums due to it and, to that end,
the initial agreement between the body responsible for
concludes debt rescheduling agreements to facilitate
the social security scheme and RTP cannot be regarded as
payment ( 67 ). The rate of default interest applied by the
representing typical behaviour of a private operator. The
State should be equal to the rate a private creditor would
dispute was whether or not the interpretation of certain
apply in similar circumstances. The Commission
social security rules as laid down in Implementing Decree
considers that a private creditor that pursued the
No 12/83 was legally correct. The agreement confirmed
recovery of the debt by legal means would obtain at
RTP’s interpretation, which was supported by the analysis
least the statutory interest rate. Therefore, by not
of a tax expert who concluded that the Implementing
requiring any interest payments at all, despite available
Decree was unconstitutional. However, the Implementing
enforcement mechanisms, Portugal did not act in the
Decree was not revoked following the agreement.
same way a private creditor would have acted in order
Therefore, it must be concluded that the measure was
to maximise the rate of interest. Furthermore, the debt
selectively applied to RTP without affecting the applica
with the social security scheme ‘built up’ in the period
bility of the social security scheme’s interpretation in
from 1983 to 1989 and a rescheduling arrangement was
relation to other companies.
agreed only in 1993. Under the same conditions, a
private creditor would not have allowed a similar
accumulation of outstanding debt over such a long
period without initiating collection procedures. Therefore,
(126) The Commission cannot accept the Portugal’s claim that
it seems that the measure conferred a specific advantage
the authorisation for the debt rescheduling and for the
on RTP.
waiver of fines and interest was given within the
framework of a general system applicable to all under
takings in a similar situation on the basis of Decree-Law
(131) Capital increases: After considering the comments from
No 411/91 and therefore did not confer a specific
third parties and Portugal, the Commission concludes
advantage on RTP.
that the capital increases in the period from 1994 to
1997 provided a financial advantage for RTP. As can
be seen from Table 3 in recital 40, considering the
weak financial position of RTP in the period when the
(127) Without prejudging the selective or general nature of
capital increases were made, no private investor would
such a scheme, the purpose of this Decision is to
have injected capital into the company as no normal
determine whether the application of the scheme to
return could be expected from the company within a
RTP was selective.
reasonable time. In fact, despite the capital injections,
RTP’s financial position deteriorated. Neither Portugal
nor third parties have alleged that Portugal acted as a
(128) In order to prove that the rescheduling is indispensable
private investor when injecting capital into the company.
to ensure the viability of the company, Decree-Law No
411/91 requires a financial/economic study to be carried
out. RTP never carried out such a study of its viability
(132) Loan 1998: The Commission cannot accept Portugal’s
pursuant to Article 2(3) of Decree-Law No 411/91.
claim that the loan granted in 1998 was in conformity
with market conditions. For the loan not to constitute
State aid, the conditions attached to it (namely, the
security sought and the interest rate) should reflect the
(129) Furthermore, the condition laid down in Article 2(1)(d)
inherent risk of lending to an undertaking ( 68 ). The risk,
of Decree-Law No 411/91 was not applicable to RTP as
and consequently the interest rate, are higher when a
the debt regularisation did not follow state intervention.
company is in an economic and financial situation the
The Commission does not accept Portugal’s claim that
soundness of which is below the level at which a
the history of State intervention affected the operation of
financial institution would lend to it.
the debtor enterprise and that RTP was governed by
statutory rules at the time of the State intervention.
Although RTP was subject to a special management
regime in 1977 (
(133) As can be seen from Table 3 in recital 40, at the time the

66 ), that regime came to an end with
the adoption of the 1980 statutes, whereas the debt to
loan was agreed, RTP was in severe financial difficulties
the social security scheme was ‘built up’ in the period
from 1983 to 1989. The Commission considers that the
( 67 ) See Judgment of the Court in Case C-342/96, Kingdom of Spain v
debt regularisation for RTP cannot be considered part of
Commission [1999] ECR I-02459.
( 68 ) Commission communication to the Member States — Application
of Articles 92 and 93 of the EEC Treaty and of Article 5 of
( 66 ) Law No 91/A/77 stipulated that an Administrative Council should
Commission Directive 80/723/EEC to public undertakings in the
govern RTP on account of its structural crisis.
manufacturing sector (OJ C 307, 13.11.1993, p. 3).

---

L 183/18
EN
Official Journal of the European Union
13.7.2012
to the extent that its debts exceeded the value of its
scheme would fall outside the concept of State aid, as the
assets and its net equity was negative. Technically, the
debt itself had been created before the Portuguese broad
company was bankrupt.
casting market was opened up to competition. The
financial advantage was granted to RTP in May 1993
after the opening-up of the broadcasting market and
(134) Firstly, it should be borne in mind that the loan was a
was therefore able to confer an economic advantage on
subordinated loan, that is to say, it had no asset-based
RTP.
security and, in the case of bankruptcy, it ranked for
repayment purposes after all creditors but before share
(140) Accordingly, it should be concluded that the measures
holders. The absence of appropriate asset-based security
granted by Portugal were able to confer an economic and
was a clear indication that the loan was not granted at
financial advantage on RTP compared with competitors
market conditions and that State aid was involved. In
not receiving the same funds and thereby to distort
view of RTP’s technical bankruptcy at the time the loan
competition within the meaning of Article 107(1) TFEU.
was granted, no financial institution would have awarded
a subordinated loan to it as there was little likelihood of
RTP being able to repay it. Indeed, the loan was not
Effect on trade between Member States
granted by a private financial institution but by the
Public Debt Stabilisation Fund.
(141) State measures fall within the scope of Article 107(1)
TFEU in so far as they affect trade between Member
States. This is the case whenever the activities in
question are subject to trade between Member States.
(135) Secondly, it may be argued that the interest rate applied
In this case, the beneficiary, RTP, is itself active on the
to the loan clearly does not reflect its intrinsic risk. Not
international market. Indeed, through the European
only is it below the reference rate that the Commission
Broadcasting Union it exchanges television programmes
normally uses to calculate the State aid element in
and participates in the Eurovision system
( 70 ).
interest subsidy schemes for loans ( 69 ), but also a
Furthermore, RTP is in direct competition with
normal market operator would require, on the top of
commercial broadcasters that are active on the inter
‘sound’ guarantees, an interest rate that compensated
national broadcasting market and have an international
for such a high risk of non-repayment.
ownership structure ( 71 ).
(142) Accordingly, it can be concluded that the measures
(136) Given that RTP’s financial position was such that it
granted to RTP by Portugal affect trade between
would not have been able to obtain a subordinated
Member States within the meaning of Article 107(1)
loan under normal circumstances, the loan effectively
TFEU.
equates to the payment of a grant and constitutes an
advantage for RTP.
Conclusion on the State aid nature of the ad hoc
measures
(137) Accordingly, the Commission considers that the debt
(143) It transpires from the above that, leaving aside possible
rescheduling with the social security scheme, the capital
public service obligations imposed on RTP, the following
injections in the period from 1994 to 1997 and the loan
measures involve State aid within the meaning of
granted in 1998 provided a financial and economic
Article 107(1) TFEU:
advantage as compared with competitors that did not
receive the same funds.
— the debt rescheduling with the social security scheme,
Distortion of competition
— the capital injections during the period from 1994 to
1997, and
(138) Since the Portuguese television market was open to
competition by 1992 at the latest, there were
competitors on the market during the period that RTP
— the loan granted in 1998.
benefited from the different measures. In February 1992,
broadcasting licences were granted to the commercial
( 70 ) See judgment of the Court of First Instance of 8 October 2002 in
broadcasters SIC and TVI and in October 1992 SIC
joined Cases Métropole Télévision SA (M6) (T-185/00), Antena 3 de
started broadcasting in Portugal.
Televisión SA (T-216/00), Gestevisión Telecinco SA (T-299/00) and SIC
— Sociedade Independente de Comunicao SA (T-300/00) v
Commission [2002] ECR II-3805.
( 71 ) In accordance with the case law of the Court of Justice, when State
(139) The Commission does not accept Portugal’s claim that
aid strengthens the position of an undertaking compared with other
the agreement on the debt with the social security
undertakings competing in intra-Union trade, the latter must be
regarded as affected by that State aid. See Judgment of the Court
of Justice of 17 September 1980 in Cases 730/79 Philip Morris
( 69 ) The reference rate is based on the five-year interbank swap rate
Holland v Commission [1980] ECR 671, paragraph 11; judgment
plus a premium (see Commission notice on the method for setting
of the Court of Justice of 21 March 1991 in Case C-303/88
the reference and discount rates (OJ C 273, 9.9.1997, p. 3). The
Italian Republic v Commission [1991] ECR I-1433, paragraph 17;
reference rates for Portugal since 1 January 1997 can be found at
judgment of the Court of Justice of 19 September 2000 in Case
http://europa.eu.int/comm/competition/state_aid/others/reference_
C-156/98 Federal Republic of Germany v Commission [2000] ECR
rates.html
I-6857, paragraph 33.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/19
Likewise, the temporary exemption from registration
equipment by means of capital injections. They do not
charges in accordance with Article 11(1) of Law No
restrict investments public services or define clearly the
21/92 and the permanent exemption from registration
conditions and limits of state participation; they merely
and other charges in accordance with Article 11(2) of
refer to the possibility for the State to participate in RTP’s
Law No 21/92 constitutes State aid within the meaning
investments as a shareholder. Therefore, the Commission
of Article 107(1) TFEU.
considers that the capital injections too may not be
considered to be part of a compensation system the
parameters of which have been established beforehand
(144) However, as referred to in recitals 44-48 of this Decision,
in an objective and transparent manner.
RTP is entrusted with a public service broadcasting
obligation. In the Case of Altmark Trans GmbH and Regie
rungsprsidium Magdeburg v Nahverkehrsgesellschaft Altmark
(148) RTP was clearly not chosen pursuant to a public
GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht
procurement procedure guaranteeing the lowest
(‘the Altmark case’), the Court of Justice held that State
possible cost. There are no indications that the amount
measures compensating for public service costs do not
of the ad hoc payments was determined on the basis of
qualify as State aid under Article 87(1) of the EC Treaty,
an analysis of the costs that a typical undertaking would
(now Article 107(1) TFEU) when the following four
incur (fourth condition).
conditions are all satisfied ( 72 ):
(149) Accordingly, it is clear that in this case not all the
(a) the recipient undertaking must actually have public
conditions set out in the Altmark case are satisfied.
service obligations to discharge, and the obligations
Therefore, the measures referred to in recital 143 of
must be clearly defined;
this Decision must be regarded as State aid within the
meaning of Article 107(1) TFEU.
(b) the parameters on the basis of which the compen
sation is calculated must be established in advance in
Assessment of the compatibility of the measures
an objective and transparent manner;
(150) The Court of Justice has consistently held that Article 106
TFEU may provide for an exemption from the ban on
(c) the compensation cannot exceed what is necessary to
State aid for undertakings entrusted with a service of
cover all or some of the costs incurred in the
general economic interest (SGEI). It has been implicitly
discharge of public service obligations, taking into
confirmed in the Altmark case that State aid which
account the relevant receipts and a reasonable
compensates for the costs incurred by an undertaking
profit for discharging those obligations;
in providing an SGEI may be regarded as compatible
with the internal market if it meets the conditions of
106(2) TFEU (ex-Article 86(2) of the EC Treaty and
(d) when the company is not chosen pursuant to a
formerly referred to as the ‘common market’) ( 73 ).
public procurement procedure, the level of compen
sation needed must be determined on the basis of an
analysis of the costs which a typical undertaking, well
(151) The Court of Justice has made it clear that, for a measure
to benefit from such exemption, the principles of defi
run and adequately equipped, would have incurred in
nition, entrustment and proportionality must all be
discharging those obligations.
fulfilled. The Commission considers that, where those
principles are fulfilled, the development of trade is not
(145) Leaving aside the conditions referred to the first and the
affected to an extent contrary to the interests of the
third conditions, the ad hoc measures (see recital 143 of
Union.
this Decision) do not seem to fulfil the second and fourth
condition of the Altmark judgment for the following
(152) The way those principles apply in the broadcasting sector
reasons:
is explained in the Communication from the
Commission on the application of State aid rules to
public service broadcasting (the Broadcasting Communi
(146) It is clear that the financing granted by means of the
agreement with the body responsible for the social
cation) ( 74 ). According to that Broadcasting Communi
security scheme and the loan in 1998 were not part of
cation, the Commission must assess whether or not ( 75 ):
a compensation system the parameters of which had
been established beforehand in an objective and trans
( 73 ) Ibidem, paragraphs 101 to 109. In those paragraphs the Court
parent manner (second condition). On the contrary, they
examined the question of whether some state payments to
transport undertakings classified as State aid could be found to
were based on ad hoc decisions attributable to the State.
be compatible with the common market under Article 77 of the
EC Treaty [now Article 93 TFEU] as reimbursement for the
discharge of public service obligations. It did not rule out this
(147) Furthermore, as referred to in recital 61 of this Decision,
possibility, provided that the binding conditions laid down by the
the public service contracts provided for a specific
secondary legislation for the transport sector were met. This
financing possibility for investments in public service
reasoning must apply mutatis mutandis to undertaking entrusted
with an SGEI outside the transport sector and in relation to
Article 86(2) of the EC Treaty [now 106 (2) TFEU].
( 72 ) Judgment of the Court of Justice of 24 July 2003 in Case C-280/00
( 74 ) OJ C 320, 15.11.2001, p. 5. It is still the 2001 Communication
Altmark Trans GmbH et Regierungsprsidium Magdeburg v Nahverkehrs
which applies to this case for reasons of ratione temporis.
gesellschaft Altmark GmbH [2003] ECR I-7747.
( 75 ) See paragraph 29 of the Broadcasting communication.

---

L 183/20
EN
Official Journal of the European Union
13.7.2012
(a) the activities of RTP are public service obligations
Commission, in view of the interpretative provisions of
clearly defined as such by the Member State (defini
the Amsterdam Protocol, considers such a ‘broad’ defi
tion);
nition to be legitimate ( 79 ). Therefore, it also considers
the general definition of RTP’s public service remit to
provide two television channels of national coverage,
(b) RTP is officially entrusted by the Portuguese auth
one more general and the other more focused on
orities with the provision of that service (entrust
specific audiences, to be legitimate. Such a definition
ment);
can be regarded as fulfilling the democratic, social and
cultural needs of Portuguese society.
(c) the funding is proportionate to the net cost of
providing the public service.
(157) Furthermore, the Commission regards as legitimate the
obligations which determine in detail how RTP should
perform the general public service broadcasting remit. In
Definition
line with wording of the Amsterdam Protocol, those
(153) As stated in the Protocol on the system of public broad
obligations can also be considered to fulfil the demo
casting in the Member States (the Amsterdam Proto
cratic, social and cultural needs of Portuguese society.
col ( 76 )) and the Broadcasting Communication ( 77 ), it is
for the Member States to define the public service
remit of the public service broadcaster. In the broad
Manifest error in defining RTP’s public service remit
casting sector the role of the Commission is limited to
checking whether the public service definition contains
(158) Although the Commission regards the public service
any manifest error. Such error would constitute an abuse
mission of RTP as legitimate, it must, however,
of the definition of the public service.
ascertain whether or not the definition contains any
manifest errors.
(154) Given the specific nature of the broadcasting sector, the
Commission considers, in view of the interpretative
provisions of that Protocol, a definition entrusting a
The Commission will assess whether the temporary and
given broadcaster with the task of providing balanced
permanent exemption from notarial deed charges, regis
and varied programming to be legitimate (
tration and publication costs can be considered as a

78 ). Such a
definition would be consistent with the objective of
compensation for a public service cost and will further
fulfilling the democratic, social and cultural needs of a
analyse whether the obligation on RTP to support
particular society.
cinemas can be considered to be within the public

service remit of RTP.
(155) As referred to in recitals 44 to 48of this Decision., RTP
is, by virtue of Law No 21/92 and the public service
(159) The Commission will first assess whether the temporary
contracts, required to ensure as a general public
exemption from notarial deed requirements (and related
television service the broadcasting of two channels with
costs), registration charges and publication costs during
general coverage. While the first channel has to offer
the 1992 transformation into a public limited company
more general programming, the second channel has to
in accordance with Article 11(1) of Law No 21/92, as
aim more at specific audiences. Furthermore, as described
well as the permanent exemption from various charges in
in recitals 44 and 45 of this Decision, Law No 21/92 and
accordance with Article 11(2) of Law No 21/92 may be
the public service contracts impose more detailed
considered as a compensation for costs resulting from
obligations on RTP regarding programme content and
the provision of the public service.
international cooperation, as well as some other
specific obligations.
Exemption from registration charges
(156) Although the definition of RTP’s public service broad
casting is of a qualitative and rather broad nature, the
(160) Temporary exemptions: Firstly, it is necessary to examine
whether costs involved in the transformation of RTP into
a public limited company in 1992 (i.e. costs normally
( 76 ) The Amsterdam Protocol considers that the system of public broad
occurring for a notarial deed, its registration and
casting is directly related to the democratic, social and cultural
publication) may be legitimately compensated for as
needs of each society and to the need to preserve media pluralism.
public service costs. The compensation takes form, as
More specifically, Member States have ‘the competence […] to
provide for the funding of public service broadcasting insofar as
stated above, by way of exemption according to
such funding is granted to broadcasting organisations for the
Article 11(1) of Law No 21/92.
fulfilment of the public service remit as conferred, defined and
organised by each Member State, and in so far as such funding
does not affect trading conditions and competition in the
Community to an extent which would be contrary to the
(161) At the time of its transformation, RTP conducted public
common interest, while the realisation of the remit of that public
service activities only (see recital 18 of this Decision),
service shall be taken into account’.
( 77 ) See paragraph 33 of the Broadcasting Communication.
( 78 ) Ibidem.
( 79 ) Ibidem.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/21
while commercial activities were carried out by legally
transformation, that argument might prove valid in the
distinct subsidiaries. Therefore, the costs related to the
case of recovery, but does not change the fact that that
transformation of the public service broadcaster auto
provision, as such, grants State aid to RTP which is not
matically constituted public service costs, which the
justified by Article 106(2) TFEU or any other provision
State legitimately could compensate. It is not necessary
of that Treaty.
to consider whether the reorganisation of RTP was legally
mandatory or needed
( 80 ). The assessment under
Article 106(2) TFEU and the Broadcasting Communi
Promotion of cinema
cation require that the compensation does not exceed
the net public service costs, but does not require an
(164) Taking into account recital 45 to the ‘Television without
assessment on whether these costs, provided that they
Frontiers’ Directive, the Commission could accept, in so
are limited to the provision of the public service, could
far the resulting film rights are shown on public service
have been avoided ( 81 ). In line with the Amsterdam
television, that the public service definition of public
Protocol and the Broadcasting Communication, Member
service broadcasters includes the obligation to contribute
States are, in principle, free to decide on the organisation
substantially to investment in European audiovisual
of their public service broadcaster, which does not only
production ( 82 ).
apply to the broadcaster’s organisation of which content
will be distributed, but also under which legal form the
public service broadcaster will carry out its operations.
(165) The Commission considers that the obligation imposed on
The Commission’s role is limited to control of whether
RTP to promote the cinema falls within the scope of public
this freedom by the Member State was used in an abusive
service broadcasting, as RTP subsequently broadcasts on
manner. In this case, there are no indications that the
public service television the films for which it has
transformation was carried out with the sole aim of
acquired the distribution rights.
conferring an advantage to RTP. There is no reason to
question Portugal’s reasoning that the 1992 trans
formation was carried out in order to give RTP more
(166) The Commission cannot, therefore, agree with the
flexibility in its operations rather than being a State
comments by interested parties that RTP’s obligation
organisation with cumbersome State control proceedings.
regarding cinema promotion and its financing is discrimi
It should therefore be concluded that the exemption
natory. The parties argued that private broadcasters also
from registration charges (i.e. notarial deed charges, regis
concluded protocols on cinema promotion with the
tration charges, publication costs) at the time of the RTP
Portuguese authorities that do not provide for compen
transformation constitutes a legitimate compensation for
sation. However, the Commission considers that it is
the provision of the public service broadcasting.
necessary to distinguish between the voluntary
agreements on cinema promotion concluded between
the State and the private broadcasters, on the one
(162) Permanent exemption: However, the above reasoning (set
hand, and the public service broadcasting obligations
out in recital 161 of this Decision) cannot apply to the
imposed on RTP to broadcast cinema productions and
permanent exemption in Article 11(2) of Law No 21/92,
to finance them, on the other hand. It is clear that RTP is
which is not limited in time and therefore open to also
explicitly entrusted with a public service task to support
cover registrations and inscriptions for activities of RTP
certain film productions that are subsequently broadcast
outside its public service remit (e.g. when RTP would
as public service television programmes, whereas no such
take up commercial activities itself rather than through
public service task is entrusted to the private broad
legally distinct subsidiaries).
casters. In fact, RTP has become an instrument used by
the State to support the cinema. Any resulting
advantages granted by RTP to the cinema could
In view of the wide scope of Article 11(2) of Law No
21/92, both as regards time (i.e. unlimited) and in kind
( 82 ) Council Directive 89/552/EEC of 3 October 1989 on the coor
(i.e. not limited to public service activities), a justification
dination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of
of any potential future exemption from registration
television broadcasting activities (OJ L 298, 17.10.1989, p. 23).
charges as a public service cost is not possible. It
According to Article 5, ‘Member States shall ensure […] that broad
should therefore be concluded that the exemption from
casters reserve at least 10 % of their transmission time […], or
charges in accordance with Article 11(2) of Law No
alternately, […], at least 10 % of their programming budget, for
21/92 is not compatible with the internal market.
European works created by producers who are independent of
broadcasters. Furthermore, according to recital 45 to Directive
97/36/EC of the European Parliament and of the Council of
30 June 1997 amending Council Directive 89/552/EEC on the
(163) While Portugal argued that Article 11(2) of Law No
coordination of certain provisions laid down by law, regulation
21/92 has never been applied and that RTP always
or administrative action in Member States concerning the pursuit
paid all necessary registration charges after the 1992
of television broadcasting activities, the objective of supporting
audiovisual production in Europe can be pursued within the
Member State through the definition of a public interest mission
( 80 ) See paragraph 81 of the judgment of the Court of First Instance in
for certain broadcasting organisations, […] including the obligation
Case T-442/03. The Commission’s statement that the trans
to contribute substantially to investment in European production’
formation was not necessary was not made in the context of the
(OJ L 202, 30.7.1997, p. 60), repealed by Directive 2010/13/EU of
compatibility assessment under Article 86(2) EC Treaty, now
the European Parliament and of the Council of 10 March 2010 on
Article 106(2) TFEU.
the coordination of certain provisions laid down by law, regulation
( 81 ) See paragraph 139 of the Judgment of the General Court in Joined
or administrative action in Member States concerning the provision
Case T-568/08 and T-573/08, Métropole télévision (M6) and Télévision
of audiovisual media services (Audiovisual Media Services Directive)
franaise 1 SA (TFI), not yet published in the Court reports.
(OJ L 95, 15.4.2010, p. 1).

---

L 183/22
EN
Official Journal of the European Union
13.7.2012
constitute State aid and should be assessed as such. This
(171) In line with the Broadcasting Communication, the
decision is without prejudice to any assessment of
Commission has to verify whether the public service
possible advantages granted to film producers.
remit has been entrusted to RTP by means of an
official act ( 85 ).
(167) Accordingly, it should be concluded that the co-financing
by RTP of Portuguese cinematographic works that are
(172) As referred to in recital 48 of this Decision, the public
shown on the public service channels may be considered
service obligations are clearly entrusted to RTP under
as a legitimate specific obligation that is instrumental in
various laws and contracts: Article 5 of Law No 58/90,
fulfilling RTP’s general public service broadcasting
Article 4(1) and Article 5 of Law No 21/92 and clause 1
obligations. This obligation does not, therefore, constitute
of the old and new public service contracts.
a manifest error.
(173) The Commission did not receive any comments from
Other services
interested parties or Portugal to the effect that the
(168) However, the Commission considers that the legal
public service was not sufficiently entrusted to RTP by
obligation imposed on RTP to provide ‘other services to be
means of an official act. In line with the Broadcasting
specified on an ad hoc basis’ (
Communication and in view of the laws and contracts

83 ) is not sufficiently precise
to enable the Commission to assess beforehand with
referred to in recital 48 of this Decision, it should be
sufficient legal certainty whether such services can be
concluded that there is RTP undoubtedly must perform
considered as a public service. Although it takes the
the public service television obligations and a public
view that the ‘other services to be specified’ are not
service remit has, therefore, been officially entrusted to
clearly defined, it notes that no payments were made
RTP.
under this provision during the period under investi
gation ( 84 ).
Supervision
Conclusion
(174) Not only is it necessary that the public service be
entrusted to RTP by means of an official act; steps
(169) In view of the foregoing, the Commission concludes that
should also be taken to ensure that the public service
the activities of RTP as described in Law No 21/92 and
is provided as required by the law and the public service
redefined in the public service contracts are clearly
contracts As referred to in recitals 49 to 59 of this
defined public service obligations.
Decision., different control mechanisms were in place
to ensure that RTP carried out the public service
obligations in the manner provided for.
Although the obligation to provide ‘other services to be
provided on an ad hoc basis’ is not sufficiently precise for
it to be concluded beforehand that all the services
(175) Firstly, RTP was required to provide reports on the
provided under this heading could be considered public
performance of its public service obligations and plans
services, no payments were made under this provision in
accompanied by an opinion of its internal board of
the period from 1992 to 1998.
auditors. RTP produced public service reports in for the
years 1993 to 1998 that described the fulfilment of each
public service obligation and identified the costs of each
public service obligation through an analytical
However, the permanent exemption from registration
accounting system.
and other charges is not limited to the compensation
of a public service cost and can therefore not be
justified under Article 106(2) TFEU.
(176) Secondly, the Minister of Finance and the responsible
government member for mass media audited the
observance of the public service contract and the
Entrustment/supervision
Inspector General of Finances audited the financial plan.
Entrustment
(170) Secondly, it is necessary to assess whether the public
service obligations were entrusted to the recipient RTP
(177) Thirdly, annual external auditing had to take place. The
of the State funding.
Commission cannot accept the argument by Portugal,
repeated after the judgment of the Court in Case
T-442/03, that in fact the public service reports were
( 83 ) Clause 13 of the old public service contract and Clause 7(1)(a) of
the new public service contract.
( 84 ) Letter from Portugal of 30 June 1999.
( 85 ) Broadcasting Communication, paragraph 40.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/23
externally audited and that thus no further action was
(180) Given the time elapse between 1992 and the public
necessary. The situation before the adoption of Decision
service report audits carried out in 2010, it has been
of 15 October 2003 may be described as follows:
difficult to access all the data. This explained the length
of the investigation and the time it took to conduct new
audits. However, in the end, the audits could be carried
out, as the public service reports already (except for the
year 1992) existed and the auditors thus had a basis for
(a) for the year 1992, no public service report existed, as
their audit. The audits for the years from 1992 to 1997
the obligation to provide public service reports and
have been submitted to the Commission.
an audit on such reports first came into place with
the concession contract of 1993;
(181) The external audits state that their mandate is to assess
(b) for the years 1993 and 1994, there was no external
and monitor the public broadcasting service, as provided
audit, just a statement by the company represen
by RTP and the payment received by it for that task.
tatives, namely of the Fiscal Council of RTP
They contain a description of the information taken
(Conselho fiscal da RTP), which is merely internal
into account. They refer, inter alia, to Law No 58/90
to the company;
(Public service broadcasting Act, Law No 21/92 on the
transformation of RTP, the public service contracts, the
yearly accounts and the external audits on the yearly
accounts, the Public Business Plan and Budget (Plano de
Actividades e Oramento do Servio Público), the public
(c) for the years 1995 to 1998, a statement by an
service reports for the respective years (Relatorio sobre o
external auditor independent from RTP and its repre
Cumprimento das Obrigaaoes do Servico Publico, RCOSP).
sentatives accompanied the reports. Those statements
The audits mention that due to the long period of
confirm that RTP respected its public service
time which elapsed between the years 1992 to 1997
obligations. No more detailed public service reports
and the auditing contract in 2010, some documents
which led to these findings could however be
were destroyed and certain information was not
accessed.
available. For that reason, the audit report mainly
focused on the available reports, in particular the
public service reports
( 86 ) and the certified annual
accounts.
(178) However, in view of the findings of the Court in Case T-
442/03 and in particular in paragraphs 232 to 256 of
the judgment, the Commission could not rely exclusively
on the (short) audit statements on the public service
reports referred to in recital 177 of this Decision and
(182) Despite those constraints due to the lapse of time, the
instead accepted Portugal’s offer to carry out an external
auditors found it possible to fulfil their contract and
audit on the basis of the existing public service reports
carry out the audits and make an assessment of the
for all the years concerned. That is to say, external audits
fulfilment of RTP’s public service obligation and the
on the fulfilment by RTP of the public service obligations
compensation received by it. The audits expressly state
were carried out for the years 1992 to 1997. For the
that the auditors were able to surmount the difficulties
year 1992, the external audit was carried out despite the
incurred to the lapse of time and carryout out the audits.
absence of a public service report. However, the external
For example, while the auditors make the reservation that
auditor relied on other document to assess whether the
the cost accounting criteria and methods of cost allo
public service mandate had been fulfilled. For the year
cations were not able to be consulted, that did not
1998, no external audit has been performed, as there
prove to be an impediment for carrying out the audit
always existed, undisputed also by SIC, an external
and for coming to a positive conclusion. The synthesis
audit in form of the BDO Binder report 1998, which
report states that: ‘all the costs and revenues of RTP are
is referred to later in recitals 186-188 of this Decision.
based on the premise that its activity only refers to the
provision of public television services, and that the
present audits were based on financial statements
audited by both the company’s internal auditor and
external auditors, from which did not result any
(179) The new audits for the years 1992 to 1997 have been
relevant facts other than the ones described in detail in
organised by the national media regulator, namely the
the annual accounts’ ( 87 ). The Commission had already
Entidade Reguladora para a Comunicao Social, ERC. The
established (see recital 18 of this Decision) that RTP
ERC is an independent administrative body which, in
accordance with the Portuguese Constitution, is
( 86 ) For 1992, a public service report was not available, but also not
responsible for ensuring, among other things, the
legally required, as it was only the old public service contract which
respect for the statutes and rules governing mass media
stipulated that requirement. However, also for the year 1992 the
activity. It organised audits to be carried out for the years
auditors come to the conclusion that there was no infringement of
the legislation valid at the time. Neither do they find any overcom
from 1992 until 1997 by contracting with the external
pensation.
auditor, Pedro Roque, which is independent of RTP.
( 87 ) Synthesis report of the external audits, point 1.4(b).

---

L 183/24
EN
Official Journal of the European Union
13.7.2012
had only conducted public service activities during the
for all the years which have been audited states explicitly
years under investigation, whereas the commercial
that: ‘for all years, the compensatory indemnification that
activities were carried out by legally distinct subsidiaries
was attributed and paid was inferior to the amounts
of RTP. The cost allocation criteria and are therefore only
indicated in each RCOPS (Relatório sobre o cumprimento
relevant for placing cost allocation within the public
das obrigaes de servio público, the public service
service costs incurred by RTP and should not have any
reports)’ ( 90 ).
effect on the amount of the total public service costs.
As regards the financial information, the Commission
found that the external auditors could legitimately rely
(185) Certain audits (with the exception of those for the years
on the annual financial accounts, which were always
1992 and 1993), state that RTP exceeded the legal adver
accompanied by an audit certifying the accuracy of the
tising limit, i.e. it broadcasted more advertisements than
accounts of RTP. According to the public service
it was permitted to do by the public service contracts.
contracts, the objective of the external audit on the
The revenue that RTP received for such advertising must
public service report was to verify that RTP had
be taken into account for calculating the public service
fulfilled its public service obligations as mandated and
costs, in accordance with the Broadcasting Communi
that the public service compensation is in line with
cation, as income generated by the public service,
these costs performing such obligations. Therefore,
including advertising revenues, should be integrated
while the financial data for the public service provision
into the calculation of the company’s public service
during the years under investigation related to the
financing need.
provision of public service by RTP, a further independent
verification was necessary to ascertain whether the costs
incurred complied with the public service mandate.
The fact that advertising limits were exceeded did not
affect the auditor’s analysis that for all 1992-97 the
(183) The external auditors confirm that point. For the years
public service compensation corresponded to the public
1992-97, the auditors come to the conclusion that: ‘RTP
service tasks carried out by RTP and there was no over
had essentially fulfilled its broadcasting obligations in
compensation. Portugal also confirmed that in respect of
terms of quantity, as set out in the concession
the years 1994, 1995 and 1996, all advertising profits
contract, with a special focus on the Broadcasting
(so including those resulting from an excess of allowed
Content obligation’. The auditor finds that ‘having
advertising time) were taken into account and reduced
analysed the documents available, namely the reports of
the public service financing need respectively ( 91 ). As
the Auditor and the Statutory Audit Committee, we did
regards the year 1996, article 15 in the new public
not find anything that would lead us to conclude that the
service contract stipulated that, for the determination of
documents presented, relating to the correspondence
the compensation the profits resulting from the exploi
between the public service tasks provided and the
tation of the channels, may not be taken into account
payment of their real and actual cost, contain materially
when summed the costs for the purposes of calculating
relevant distortions that affect their compliance with the
the total cost of the public service. The ‘profits’ includes
legislation in force on that date’ ( 88 ).
the advertising revenues. Portugal explicitly confirmed
that the advertising profits were deducted from the
amount of compensation required ( 92 ).
(184) A number of audit reports mention that RTP could have
requested a higher amount of compensation but was
prevented from doing so due to the terms of the
public service contracts, due to Article 15(4) of the old
public service contract and Article 19(3) of the 1996
(186) As regards the year 1998, the external BDO Binder
new public service contract. The individual external
carried out an investigation regarding the relationship
audits for the years 1994, 1996 and 1997 contain
between RTP’s public service remit and the costs
statements regarding the difference between the high
related thereto. The BDO Binder report gives several
costs actually incurred by RTP for providing the public
future oriented recommendations and suggests
service and the compensation received by it which was
strengthening RTP’s internal controls to ensure
less than the costs incurred (
compliance with internal regulations, but does not

89 ). The final synthesis report
include any finding that RTP had received too much
compensation in relation to the public service tasks
( 88 ) The translation reflects the Portuguese original, which speaks of
carried out by it or that the figures used in the public
‘concession contracts’. The concession contracts are identical with
service report drawn up by RTP and used by the
the public service contracts, i.e. the old and the new public service
Commission in Decision of 15 October 2003 could
contract as referred to throughout the decision, see also footnote
26 of this Decision.
not be relied upon. When the BDO Binder report
( 89 ) For 1994, a value of PTE 14 034 734 000 was found which was
addresses concrete figures, it refers to a failure in
found to exceed the amount allocated by the Government, but
drawing up an inventory for certain assets. However,
according to clause 15.4 no further compensation could be
the BDO Binder Report appears more to criticise the
claimed than the PTE 7 145 million granted, as shown in Table 1
of this Decision. For 1996, an amount of PTE 14 594 568 000 was
found, which was above the amount allocated of PTE
( 90 ) Page 23 of the synthesis report on all the audits.
14 500 million. For the year 1997 a value of 11 752 261 000
( 91 ) Submission from Portugal of 25 August 2011.
was found which compares to PTE 10 350 million of actual allo
( 92 ) See also recitals 27 and 116 of the Commission Decision in Case
cation.
NN 31/06.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/25
absence of an asset inventory ( 93 ), rather than concluding
this Decision, the PWC audit report can be taken as
that the respective investments had not been made and
another element, in addition to the external audits on
that the investment values have wrongly been accounted
the public service reports, that the data used by the
for. However, as stressed by Portugal, figures for the
Commission in Decision 2005/403/EC were correct.
respective investments were, in any event, not included
in the compensation calculation, which excluded that
depreciation costs for fixed assets could be reimbursed.
The findings of the Tribunal de Contas
(190) Regarding the complainant’s argument that the report No
(187) As regarding the excess of advertising times the BDO
8/2002 of the State auditor, the Tribunal de Contas,
Binder report found that all advertising income had
should be taken into account, the Commission has
been taken into account for the calculation of the
indeed considered that report in its assessment in this
public service financing need. Again, none of these
Decision. Firstly, it must be acknowledged, as admitted
factors lead the auditor to give a negative opinion on
also by SIC, that the audit report No 8/2002 covers the
the fulfilment — by RTP of its public service obligations
period from 1997 to 2000, and is therefore only relevant
nor does it point to any overcompensation.
for the years 1997 and 1998. While figures in respect of
earlier years have been mentioned in that report, they
were meant to use to describe the general financial devel
opment of RTP, but were not themselves subject of the
Court of Auditor’s investigation.
(188) But most importantly for the analysis in this Decision is
the conclusion in the BDO Binder Report (which is not
disputed by SIC), that RTP could have claimed PTE
25 billion for the fulfilment of its public service
obligations, but instead only received PTE 14 billion. In
(191) Most importantly, report No 8/2002 does not point to
other words, the BDO Binder report does not point to
any irregularity in RTP’s financing or to any overcom
any overcompensation but instead comes to the opposite
pensation for the years 1997-2000 (or for any of the
conclusion.
other years). On the contrary, the report No 8/2002
points a number of times to RTP’s structural financial
difficulties. Accordingly, the Commission is not in a
position, on the basis of the report No 8/2002 report
to single out certain payments as constituting overcom
The PWC audit
pensation and illegal State aid. On the contrary, the
report No 8/2002 report explicitly confirms that from
(189) As stated in Decision NN 31/06 regarding the restruc
1993 until late 1999, RTP’s survival was achieved using a
turing of RTP, an external audit by PriceWaterhouse
continuous and increasing indebtedness of the company.
Coopers has scrutinised whether the financial
information provided by the Portuguese authorities was
in accordance with the RTP’s financial accounts in the
period 1991 to 2003, with the amounts included in the
public service audit reports and with other sources of
information which were considered relevant to ensure
(192) As mentioned by the complainant, the report No 8/2002
report criticises, the management of the company a
the conformity of the reported audits (see recital 38 of
number of times and points to inefficiencies which
Decision NN 31/06). The PWC audit report validated the
could have been avoided. The objective of the report
data without any significant remark (recital 52 of
No 8/2002 report is defined as a general review of
Decision NN 31/06). The PWC audit report expressly
RTP’s management and the provision of public service
confirmed that the amounts received by RTP as public
television, in terms of efficiency, effectiveness and
service compensation corresponded to the amounts
economy. As pointed out by the complainant, the
indicated in the resolutions from the Council of
report No 8/2002 report indicated that RTP had
Ministers (see recital 41 and table 39 of Decision NN
inflexible structures and excessive staff levels and was
31/06). The PWC audit report remarked on the global
providing a public service in an inefficient manner. The
under-financing of RTP. It pointed out that in addition to
report No 8/2002 report also criticise the excessively
the public service tasks which were reimbursable under
vague and generic concept of the public service remit
public service contracts there were public service tasks
and the public service contracts which invite, according
which were carried out RTP, but for which no
to the State auditor, managerial inefficiency.
reimbursement from the State could be demanded. The

Commission concluded in Decision NN 31/06 that the
PWC audit report could therefore correctly base itself on
RTP’s financial accounts and found that RTP was indeed
chronically underfinanced. Therefore, for the purposes of
(193) However, the concept of RTP’s public service remit was
investigated by the Commission in the decision of
( 93 ) It should be noted that according to Portugal, the dimension of this
criticism is much smaller as of the amount of EUR 53 million, only
15 November 2003. In Case T-442/03, the Court
4 million were lost.
upheld that the wide definition of RTP’s remit was

---

L 183/26
EN
Official Journal of the European Union
13.7.2012
acceptable ( 94 ). As to the alleged inefficiencies, the
(202) As referred to in recital 65, under the cost calculation
Commission would like to point out that this is not an
method laid down in the public service contracts, certain
aspect which needs to be considered in the application of
public service costs were excluded from payment by
the Broadcasting Communication.
means of annual compensation ( 96 ). Moreover, Portugal
informed the Commission that, although RTP had to pay
VAT on the annual compensation payments received, the
Proportionality
resulting costs could not be taken into account under the
accounting rules (see recital 94) Finally, in its public
(194) The third criterion the Commission should assess is
service reports, RTP did not include all the investments
whether the financing is proportionate to the net cost
made in public service equipment, although these were
of the public service.
accounted for in its financial accounts (see recital 67).
(195) The Broadcasting Communication describes the criteria
on the basis of which the Commission assesses the
(203) However, under the Amsterdam Protocol, it is for the
proportionality of state funding. It requires that the
Member State to provide for the funding of the public
State aid should not exceed the net costs of the public
service broadcasters. In this case, the Portugal decided not
service mission and that no market distortions should
to reimburse some of the costs incurred by the service
occur that were not necessary for the fulfilment of the
provider in fulfilling its tasks.
public service mission ( 95 ).
(196) Firstly, in order to determine the cost of the public
(204) In this case, the State granted not only annual compen
service activities correctly, the Broadcasting Communi
sation payments to RTP but also additional financing in
cation requires a proper allocation of costs and revenue
the form of share capital increases, loans and an
between the public service and commercial activities.
agreement with body responsible for the social security
scheme. In accordance with paragraph 57 of the Broad
casting Communication, the Commission must analyse
(197) As referred to in recitals 61-67 of this Decision, the
whether all measures are proportionate to the net
public service contracts define the method of cost and
public service costs. Only then can the financing of
revenue allocation that RTP must apply. In this case, the
RTP be considered to be compatible with Article 106(2)
Commission’s task is, in principle, made easier by the fact
TFEU.
that RTP has implemented an analytical accounting
system which permits quantification of the eligible
costs incurred by it to fulfil each of the reimbursable
public service obligations.
(205) The Commission also considers that the public service
obligations imposed on RTP which were not eligible for
compensation under the public service contracts may be
(198) By means of that system, each item of eligible expen
considered as legitimate and clearly defined public service
diture is allocated to an activity and subsequently divided
obligations formally imposed by the State on the service
between the different reimbursable public service tasks of
provider. Therefore, under the State aid rules, Portugal
RTP, on the basis of objective accounting principles.
may finance all the net public service costs of RTP.
(199) As the revenues derived from each reimbursable public
service task are deducted from the operating costs of the
(206) Table 6 in recital 207 gives an overview of RTP’s public
public service, the system guarantees that the annual
service costs (both investment costs and net operating
compensation payments are limited to the net cost of
costs), as calculated under the cost accounting rules
each public service obligation (see recital 65 of this Deci
applicable, and of the compensation received for
sion).
investment and operating costs.
(200) The Commission has, therefore, come to the conclusion
that the parameters for determining the cost are estab
(207) Firstly, the investments in public service equipment
lished in an objective and transparent manner.
(Table 5) and compensation provided for to finance
investments (Table 2) are presented. Secondly, the net
operating costs of RTP (Table 4) and the compensation
(201) However, the rules of cost compensation might under
payments for these costs (Table 1) are presented. Lastly,
estimate the real net cost of RTP’s public service and
the table shows the advantage gained from ad hoc aid
could lead to structural under-financing of the real
resulting from the agreement with the social security
funding needs.
scheme and the loan of 1998.
( 94 ) See paragraphs 194 et seq. and in particular paragraphs 201 and
( 96 ) The operating costs of the first and second channel under the old
203 of the Judgment in Case T-442/03.
public service contract correspond to the financing costs and the
( 95 ) Broadcasting Communication, paragraphs 57 and 58.
costs of correspondence where other operators were also set up.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/27
Table 6
Summary of funding needs and compensation for the public service net operating cost under the
accounting rules
(PTE million)
1992 1993 1994 1995 1996 1997 1998 Sum
Investment costs 2
632,6 2
102,0 2
763,9 992,7 1
480,4 4
037,4 6
054,2 20
063,2
Capital injections –
0 –
0 –
10
000,0 – 12 800,0 – 10 000,0 – 14 000,0 –
0 –
46
800,0
Difference between 2 632,6 2
102,0 –
7
236,1 –
11
807,3 –
8
519,6 –
9
962,6 6
054,2 –
26
736,8
investment costs
and compensation
Public service
6 718,2 7
960,0 8
384,1 8
103,3 17
217,1 37
972,1 30
101,3 116
456,1
operating costs
Compensation
– 6 200,0 –
7
100,0 –
7
145,0 –
7
200,0 –
14
500,0 – 10 350,0 – 14 000,0 –
66
495,0
payments
Social security
— –
1
206,0
—
—
—
—
— –
1
206,0
Loan
– 20 000,0 –
20
000,0
Difference between 518,2 (*) –
346 1
239,1 903,3 2
717,1 27
622,1 –
3
898,7 28
755,1
operating costs
and compensation
(*) For 1992, the registration charges of PTE 11 000 000 will have to be taken into account, see recital 210 of this Decision below.
Source: Financial report and public service reports.
(208) As emphasised in recital 201 and 202, the system of
Decision), contrary to the Commission’s original
annual compensation payments chosen by Portugal had
assumption. Taken into account that amount, there
the effect of underestimating the actual costs of the
would still be an under-financing of RTP of PTE
public service tasks performed by RTP. The system led
2 007,3 million.
to an accumulation of debt. At a second stage, in order
to maintain RTP’s financial equilibrium, Portugal used ad
hoc measures to finance RTP’s public service costs.
(211) The Commission considers that the funds received by
RTP were even lower than the total net costs incurred
in fulfilling the obligations imposed on it by the State
owing to the fact that Table 6 in recital 207 does not
(209) As Table 6 in recital 207 shows, the capital injection
take into account all the public service costs of RTP in
overcompensated for public service investments by PTE
the period from 1992 to 1998.
26 736,8 million, whereas the operating costs were
underfinanced by the compensation payments and the
other ad hoc measures to the tune of PTE
28 755,1 million. Although the capital injections were
basically meant to finance investments in equipment,
(212) In accordance with the Broadcasting Communication, the
they were also used to repay accumulated debt.
Commission should ensure that the State funding is
proportionate to the net costs of providing the public
service, but also that no market distortions occur with
respect to the commercial activities which derive from
the public service activities and for which no correct cost
(210) As Table 6 in recital 207 also shows, the total compen
allocation is possible on the revenue side that are not
sation was PTE 2 018,3 million less than the net public
necessary for the fulfilment of the public service mission.
service costs (PTE 28 755,1 minus PTE 26 736,8 mil
There would be such a distortion if RTP depressed the
lion). The Commission concludes, therefore, that under
prices of advertising on the market so as to reduce the
the Union rules total State funding is proportionate to
revenue of competitors ( 97 ). In such a case, RTP would
the net operating public service costs of RTP for the
not maximise its commercial revenues and would
period under investigation. That finding does not
unnecessarily increase the need for State funding.
change if it is considered that the PTE 11 000 000
According to the Broadcasting Communication, such
resulting from the exemption from registration charges
also to be State aid (see recitals 119 and 120 of this
( 97 ) Broadcasting Communication, paragraph 58.

---

L 183/28
EN
Official Journal of the European Union
13.7.2012
conduct, if demonstrated, cannot be considered as
competition in the Union to an extent which would be
intrinsic to the public service mission attributed to the
contrary to the interests of the Union under
broadcaster ( 98 ).
Article 106(2) TFEU ( 101 ).
(213) In the Decision initiating the investigation procedure of
VI. CONCLUSION
15 November 2001, the Commission stated that, if such
conduct were found to have taken place, it would take
(217) The Commission finds that Portugal has unlawfully
such distortions and the resulting need for higher State
implemented the ad hoc aids in breach of Article 108(3)
funding into account when assessing possible overcom
TFEU ( 102 ). This does not apply to the temporary
pensation. At that stage in the procedure, the
exemption from notarial deed charges and publication
Commission noted that ‘on the basis of the information
fees according to Article 11(1) of Law No 21/92, as
the Commission has in its possession at this moment, it
these measures are not considered to constitute State
cannot be established whether RTP engaged in such
aid within the meaning of Article 107(1) TFEU.
behaviour’ ( 99 ).
(218) As referred to in recital 143, the Commission concludes
(214) Following the invitation to submit comments on the
that the agreement with the body responsible for the
initiation of procedure in this case, the Commission did
social security in 1993, the capital injections in the
not receive any observations from RTP’s competitors
period from 1994 to 1997 and the loan in 1998
indicating or demonstrating that RTP was engaged in
constitute State aid within the meaning of Article 107(1)
anti-competitive behaviour in commercial markets that
TFEU. Similarly, the exemption from registration charges
could lead to increased state funding incompatible with
according to Article 11(1) of Law No 21/92 and the
the Treaty ( 100 ).
permanent exemption from charges in accordance with
Article 11(2) of Law No 21/92 constitute State aid. The
ad hoc measures are granted through State resources, and
threaten to distort competition in the internal market by
favouring RTP and have an effect on trade.
(215) Under the circumstances, the Commission considers that
there are no indications suggesting such behaviour.
Consequently, it concludes that RTP does not seem to
have engaged in anti-competitive behaviour in
commercial markets leading to an increased need for
The ad hoc measures do not fulfil the conditions set out
State funding and that no overcompensation took place
in the Altmark judgment, as they may not be regarded as
as a result of such behaviour.
part of a compensation system, whose parameters have
been established beforehand in an objective and trans
parent manner. Furthermore, it is clear that RTP was not
selected by means of a public tender procedure guaran
teeing the lowest possible cost and there are no indi
Conclusion
cations that the amount of the ad hoc payments was
determined on the basis of an analysis of the costs that
(216) Accordingly, the Commission concludes that the
a typical undertaking would incur.
agreement with the body responsible for the social
security scheme, the capital injections and the
subordinated loan as well as the temporary exemption
from registration charges should be regarded as State aid
within the meaning of Article 107(1) TFEU. However, the
(219) The exemption provided for in Article 106(2) TFEU is
funding of RTP by means of ad hoc measures is
applicable to the ad hoc measures with the exception of
compatible with the internal market within the
the permanent exemption of RTP under Article 11(2) of
meaning of Article 106(2) TFEU. The total funding is
Law No 21/92. As analysed the measures compensated
proportionate to the net costs of clearly defined,
clearly defined public service obligations sufficiently
entrusted public service obligations. Therefore, the State
entrusted to RTP by Law No 21/92 and the public
funding did not affect trading conditions and
service contracts. The ad hoc measures are proportionate
to the net operating public service cost of RTP. The ad
hoc measures do not distort competition to an extent
( 98 ) Ibidem.
( 99 ) Recital 91 of the decision initiating the procedure in this case.
contrary to the Union’s interest, as the measures are
( 100 ) It should be pointed out that in 1993 the complainant SIC also
proportionate to the net public service cost of RTP.
alleged a violation of Article 86(1) of the EC Treaty (formerly
RTP also did not behave in an anti-competitive manner
Article 90), now Article 106(1) TFEU as regards the legal
in commercial activities.
structure put in place by the Portuguese State on the advertising
market and RTP’s programme acquisition policy (see also
Commission Decision 89/536/EEC of 17 September 1989).
( 101 ) Broadcasting Communication, paragraph 58.
Subsequently, the Commission assessed these allegations under
( 102 ) Reference in this regard is made to the facts part of the decision,
Article 86(1).
which outlines the implementation for each of the measures.

---

EN
13.7.2012 Official
Journal
of
the
European
Union L
183/29
(220) The Commission finds that the permanent exemption
2. The
State
aid
unlawfully
granted
by
Portugal,
in
breach
of
provided for in Article 11(2) of Law No 21/92
Article 108(3) of the Treaty, on the basis of Article 11(2) of
constitutes State aid which is not compatible with the
Law No 21/92, in favour of RTP, is incompatible with the
internal market as it does not qualify as a compensation
internal market.
for the operation of a service of general economic
interest within the meaning of Article 106(2) TFEU.
Therefore, Portugal should abolish that law. Portugal
Article 4
should also ensure that any aid paid to RTP under that
Law should be recovered from it.
1. Portugal
shall
repeal
the
law
referred
to
in
Article
3(1)
of
this Decision and shall order recovery of any State aid received
by RTP under that provision until the repeal of the law.
(221) Considering the above conclusions, the Commission,
2. The sums to be recovered shall bear interest from the date
on which they were put at the disposal of RTP until their actual
HAS ADOPTED THIS DECISION:
recovery.
Article 1
3. The
interest
shall
be
calculated
on
a
compound
basis
in
accordance with Chapter V of Regulation (EC) No 794/2004
1. The
following
ad
hoc
measures
granted
by
Portugal
in and to Regulation (EC) No 271/2008 amending Regulation (EC)
favour of Radioteleviso Portuguesa, SA, (RTP) constitute State
No 794/2004.
aid within the meaning of Article 107(1) of the Treaty.
Article 5
(a) the rescheduling of a debt of PTE 1 206 million by Portugal
1. Recovery
of
the
aid
granted
under
the
law
referred
to
in
to RTP in the form of an agreement with the body
Article 3 shall be immediate and effective.
responsible for the social security in 1993;
2. Portugal
shall
ensure
that
this
Decision
is
implemented
(b) capital injections in the period 1994 to 1997 amounting to
within four months following the date of notification of this
PTE 46 800 million;
Decision.
Article 6
(c) a loan of PTE 20 000 million granted in 1998;
1. Within two months following notification of this
Decision, Portugal shall submit the following information to
(d) a temporary exemption from registration charges provided
the Commission:
for in Article 11(1) of the Portuguese Law No 21/92 and
amounting to PTE 11 000 000.
(a) a detailed description of the measures undertaken to abolish
Article 11(2) of Law No 21/92;
2. The
State
aid
measures
referred
to
in
paragraph
1
of
this
Article are compatible with the internal market within the
(b) the total amount (principal and recovery interests) to be
meaning of Article 106(2) of the Treaty since they did not
recovered from RTP;
lead to any overcompensation of the net costs of the public
service tasks entrusted to RTP.
(c) a detailed description of the measures already taken and
planned to comply with this Decision;
Article 2
The exemption from notarial deed charges and publication costs
(d) documents demonstrating that RTP has been ordered to
provided for in Article 11(1) of the Portuguese Law No 21/92
repay the aid.
does not constitute State aid.
2. Portugal
shall
keep
the
Commission
informed
of
the
Article 3
progress of the national measures taken to implement this
Decision until recovery of the aid referred to in Article 3 has
1. The
unlimited
exemption
accorded
to
RTP
from
the been completed. It shall immediately submit, on simple request
payment of any charges and fees in respect of any act of
by the Commission, information on the measures already taken
inscription, registration or annotation, as provided for
and planned to comply with this Decision. It shall also provide
Article 11(2) of the Portuguese Law No 21/92, constitutes
detailed information concerning the amounts of aid and
State aid within the meaning of Article 107(1) of the Treaty.
recovery interest already recovered from RTP.

---

L 183/30
EN
Official Journal of the European Union
13.7.2012
Article 7
This Decision is addressed to the Portuguese Republic.
Done at Brussels, 20 December 2011.
For the Commission
Joaquín ALMUNIA
Vice-President

---

Document Outline

• �

---