In the 20 years of applying the rules on state aids to PSM, the Commission has been fairly lenient towards a broadly defined remit, allowing public broadcasters to contribute to the democratic, cultural and social goals of European societies. PSM has been considered a 'work in progress' that needs to be carefully reflected upon by the member states, public broadcasters and other stakeholders (Donders, 2012a: 197). Admittedly setting out from a predominant market failure approach, the Commission has faced difficulties in grasping the complexity and context-dependent nature of PSM.
Culture and cultural diversity have not been extensively considered in Commission decisions, nor has the cultural exception in the TFEU provided a legal basis for exempting state aids to PSM. In fact, the Commission has completely ignored the cultural dimension of PSM. An assessment approach based on the cultural state aid exception in the TFEU will need to overcome a number of hurdles. First, the notions of culture and cultural diversity will require operationalisation if one seeks to develop case argumentations on their basis. Whether this would result in deviating from the current Broadcasting Communication is difficult to foretell, but seems rather unlikely. Second, and related to the former point, it remains doubtful to what extent an exemption on the basis of Article 107(3)(d) TFEU will make it easier to reconcile a holistic PSM project with ideas such as perfect competition, market failure and distortion of trade.
One might regret the fact that the cultural exception is no basis for cases dealing with state aids to PSM, and with valid reason (Psychogiopoulou, 2006, 2008). However, Article 106(2) TFEU has shown to be a very solid basis for the protection of PSM within the EU internal market. The question obviously rises whether the entire notion of PSM being an exception to the common practice of the free flow of services, goods, capital and people is acceptable at all - especially if PSM is considered to be a fundamental, not accessory, component of European democracies. Going against the status of PSM as an exception requires a strengthening of the cultural competences of the EU in primary law. So far, member states have always resisted that. In the end it is the member states that decide on the task and faith of public broadcasters. Cultural diversity ultimately starts with ensuring domestic production, aggregation and distribution of contents.
- 1. CFI, Case T-289/03, BUPA v. Commission, 12 February 2008, para. 157.
- 2. ECJ, Case C-53/00, Ferring v. ACOSS, 22 November 2001.
- 3. ECJ, Case C-280/00, Altmark Trans GmbH and Regierungsprasidium Magdeburg v. Nahverkehrsgesellschaft Altmark GmbH, 24 July 2003.
- 4. CFI, Cases T-95/96, Telecinco v. Commission, 15 September 1998;T-17/96, TF1 v. Commission, 3 June 1999;T-46/97, SIC v. Commission, 10 May 2000.
- 5. CFI, TF1 v. Commission, above, para. 78.