European State aid rules and the public service remit of public service broadcasting in the digital age: analysing a contentious part of European policy and integration.

In June 2006 the European Commission (EC) requested the Belgian authorities to clarify the financing of the Flemish public service broadcaster (PSB) VRT. One year earlier, in March 2005, Germany, Ireland and the Netherlands were asked to do the same. Subsequently, in late June 2006, the Commission concluded that the Dutch PSB NOS had been overcompensated between 1994 and 2005. The NOS now has to reimburse 76.3 million euro to the Dutch government. Further investigations into the funding of NOS new media activities are under way.

The recent more active stance of the EC with regard to PSB and state aid is perceived by some as a threat to PSB and the democratic, social and cultural needs of society it contributes to. For others it is the outcome of an economic reality in which PSBs and commercial undertakings operate in an integrated European single market. Although the Commission emphasizes that PSBs are vital for European democratic societies, some might indeed interpret the recent decisions of the Commission as proof for its more liberal stance. We assume that both from an ideological and regulatory viewpoint state aid is indeed no longer taken for granted as an essential part of the media policy toolkit. Markets and competition have been found equally important or even more so. But next to the EC the European Member States (MS) are accountable for this evolution as well. Most West European governments for example continuously question PSBs and their financing in particular. However, this does not prevent MS to vigorously defend their PSBs when under fire by the Commission.

Two research questions underly this paper. We, firstly, question whether the overall impression of the Commission taking a more liberal stance with regard to state aid and PSB is an empirical one. Secondly, we inquire whether this liberal course can be attributed to the sole action of the Commission itself or that it is on the contrary the result of a complex give and take game between MS, Commission and Courts, in which all defend sometimes conflicting sometimes converging interests. Therefore the aim of this paper is to study the dynamic interactions between all the different actors involved.

We, firstly, address the room of manoeuvre for the different parties by analysing the relevant state aid rules and policy documents. The Amsterdam Protocol (1997) and the Broadcasting Communication (2001) deserve special attention because both documents indeed emphasize the competence of MS to define and organise a system of PSB, insofar as their support does not excessively affects the Community interest.

Secondly, the implementation of existing rules is assessed. This analysis, grounded in the interpretation of mainly Commission decisions, is not a legal analysis per se, but rather covers a dynamic examination of the various issues that come up within the analysis of PSB State aid cases.

To conclude, we come back to our main research questions and try to nuance the existing view of EU public service broadcasting policy as the outcome of a dichotomic position between (protectionist) member states at the one hand and a (liberal) Commisssion and (liberal) Courts at the other.