Cleary Gottlieb successfully represented SES Astra, a satellite platform operator, in a long and complex legal dispute relating to the transition to digital television in Spain.
In 2008, Cleary represented SES Astra in its complaint to the European Commission regarding various regulatory measures adopted by Spain between 2005 and 2008 to facilitate the transition from analogue to digital television. The Commission opened a formal investigation in 2010, and in 2013 adopted a decision finding that the aid granted to DTT operators in Spain was incompatible with EU law because it was in breach of the principle of technological neutrality (the measures exclusively funded the digitisation of terrestrial transmission technology and did not benefit alternative transmission platforms like satellite and others).
The 2013 decision was appealed before the General Court by Spain; the Autonomous Communities of the Basque Country, Galicia, and Catalonia; and a number of digital terrestrial television platform operators. Cleary represented SES Astra in the proceedings before the General Court as an intervener in support of the Commission.
The favorable judgments of the General Court dismissing the actions were appealed by the Kingdom of Spain, certain autonomous communities, and the main terrestrial television platform operators before the Court of Justice. On December 20, 2017, the Court of Justice dismissed all the appeals except the one lodged by the Autonomous Community of Galicia and Retegal. The Court of Justice upheld the plea of the Autonomous Community of Galicia and Retegal claiming that the Commission had breached its duty to state reasons in the analysis of the selectivity of the measures at issue and annulled the 2013 decision.
Following the annulment of the 2013 decision, and at the behest of SES Astra, the Commission carried out an additional in-depth investigation and, on June 10, 2021, confirmed that the measures adopted by Spain constitute incompatible State aid that needs to be recovered.
This recent decision marks the conclusion of a long-running and complex saga relating to the selectivity of the measures granted by Spain to the operators of the terrestrial television platform for the deployment of the DTT network.