Promotion of dubbing and subtitling of films in Catalan

Transcription

1 EUROPEAN COMMISSION Brussels, C(2010) 1247 final PUBLIC VERSION WORKING LANGUAGE This document is made available for information purposes only. Subject: State aid N 33/2010 Spain Promotion of dubbing and subtitling of films in Catalan 1. SUMMARY 1. I am pleased to inform you that the European Commission has decided to give State aid approval to the above aid scheme until 31 December This approval is subject to the commitment made by the Spanish authorities to modify the scheme if required by any changes to the relevant State aid rules during this period. 2. PROCEDURE 2. By submission dated 21 January 2010, registered the same day, the Spanish authorities notified the scheme mentioned above. 3. DESCRIPTION OF THE AID MEASURE Objective 3. The Catalan authorities intend to support the commercial exhibition of feature films dubbed and/or subtitled in Catalan language. Excmo. Sr. Don Miguel Ángel MORATINOS Ministro de Asuntos Exteriores Plaza de la Provincia 1 E MADRID Commission européenne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussel - Belgium. Telephone : (32-2)

2 Legal basis 4. The legal bases of the measure are: 4.1. el Decreto 216/2005, de 11 de octubre, de estructura orgánica de la Secretaría de Política Lingüística, modificado por el Decreto 632/2006, de 27 de diciembre; 4.2. la Ley 1/1998, de 7 de enero, de política lingüística; 4.3. la Ley 38/2003, de 17 de noviembre, general de subvenciones; 4.4. la Ley de finanzas públicas de Cataluña, aprobado por el Decreto legislativo 3/2002, de 24 de diciembre; 4.5. the draft "Orden VCP/, de, por la cual se aprueban las bases reguladoras para la concesión de ayudas para iniciativas destinadas a aumentar los estrenos comerciales de largometrajes doblados o subtitulados en lengua catalana". Beneficiaries 5. The beneficiaries of these subsidies are legal persons which distribute film productions. The Spanish authorities estimate the number of beneficiaries to be between 11 and 50. Eligible projects and selection criteria 6. The subsidies will take the form of direct grants to the beneficiary undertakings to support the costs incurred with subtitling and/or dubbing films in Catalan language. 7. The following costs are eligible for support: Dubbing costs for feature films; Subtitling costs for feature films; Copying costs in 35 mm format or in digital format of the dubbed or subtitled versions; Costs of promotion material for the dubbed and/or subtitled versions.. 8. Applications for subsidies will be subject to assessment by an Evaluation Committee on the basis of the following selection criteria: Films directed at a widespread public with a special focus on children: up to 15%; Quality and interest of the film (artistic value, relevance to cultural, social, linguistic or other values of the Catalan country or its inhabitants): up to 30%; 2

3 Expected commercial impact (success of the film in the country of origin, simultaneous commercial premier in other parts of Spain and advertising campaign) up to 30%; Proof of the ability of the applicant to cooperate with identified cinema exhibitors: up to 25%. 9. Applications scoring less than 50% according to the criteria above will be rejected. Aid intensity 10. The maximum aid intensity is up to 100% of the project's costs. Cumulation 11. Financing granted under the present scheme may be cumulated with other sources of financing awarded for the same purpose by any other entity, provided that the global amount does not exceed the total cost of the subsidised activity. Budget 12. The global budget of the scheme is EUR , granted out of the general budget of the Catalan autonomous region. Duration 13. Subject to Commission approval, support under the notified scheme can be granted until 31 December Granting authority 14. The financing will be granted by the Secretariat for Linguistic Policy of the Catalan Government (Secretaría de Política Lingüística, Departament de Vicepresidència de la Generalitat de Catalunya). 4. ASSESSMENT OF THE AID MEASURE Notification requirement 15. The Spanish authorities have complied with the procedural requirements of Article 108(3) of the TFEU 1 by notifying the scheme before it is implemented. State aid in the sense of Article 107(1) of the TFEU 16. According to Article 107(1) of the TFEU, "any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to 1 With effect from 1 December 2009, Article 87 of the EC Treaty has become Article 107 of the Treaty on the Functioning of the European Union (TFEU); the two sets of provisions are in substance identical. For the purposes of this Decision references to Article 107 of the TFEU should be understood as references to Articles 87 of the EC Treaty when appropriate. 3

4 distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.". 17. In order to be classified as a state aid, a national support measure must therefore fulfil the following cumulative conditions: 1) the measure must be granted through State resources; 2) it has to confer an economic advantage to undertakings; 3) this advantage must be selective and distort or threaten to distort competition; and 4) the measure must affect intra-community trade. Presence of State resources 18. In the case at hand there are state resources involved since the scheme is financed out of the general budget of the Catalan autonomous region. Economic advantage to an undertaking 19. The direct grants awarded to the beneficiaries constitute payments that they would not receive under normal market conditions. The beneficiaries are undertakings which carry out economic activities. Therefore, the scheme provides an economic advantage to undertakings. Selectivity and distortion of competition 20. The notified scheme allows a selected number of enterprises to be relieved, by means of State resources, of a part of their costs regarding financing subtitling and/or dubbing activities which they would normally have to bear themselves. The economic advantage granted under the scheme is selective in the sense that it will benefit exclusively undertakings which distribute cinema productions and, amongst these, those that distribute films dubbed and/or subtitled in Catalan. The Commission understands that the definition of beneficiaries set out in the legal basis referred to above at point 4 is met by legal persons from the EEA which distribute cinema productions, independently of their place of establishment. 21. Consequently, the support from the State strengthens the position of a selected number of beneficiaries in relation to their competitors in the Community and therefore has the potential of distorting competition. Effect on intra-community trade 22. Taking into account that the use of the Catalan language is confined to a limited linguistic and geographical area, it can be argued that the measure is unlikely to have an appreciable effect on trade. However, in view of the presence of the Catalan language in the territory of two Member States, it cannot be excluded that the measure has nevertheless a certain effect on intra-community trade. Conclusion 23. Therefore, the Commission considers that the scheme may constitute State aid in the meaning of Article 107(1) of the TFEU and it is therefore necessary to assess its compatibility under the provisions of Article 107(3) of the TFEU. Compatibility 4

5 Applicability of article 107(3)(d) of the TFEU 24. The Commission considers that the "Cinema Communication"2, which is based on the cultural derogation provided for in Article 107(3)(d) of the TFEU, does not apply to the notified scheme as it concerns a specific post-production activity linked to the commercialisation of the works. It can, however, be considered by analogy. Also, the direct application of Article 107(3)(d) cannot be excluded. 25. The present scheme intends to promote the use of the Catalan language 3. When the aim of a measure is to promote culture (in this case in the form of protecting the use of a certain minority language in Spain), the exception to the general incompatibility of State aid most likely to apply is the one foreseen in Article 107(3)(d) of the TFEU. Common interest 26. As referred to above, the promotion of the Catalan language as a regional language which forms part of the national and European cultural heritage is considered to be in the common interest. Indeed, as provided in Article 167(1), the Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore. The respect for the cultural, religious and linguistic diversity in Member States was reaffirmed in the Charter of Fundamental Rights of the European Union4 and the Commission adopted, in 2005, a Communication on a new framework strategy for multilingualism5. This latter instrument calls upon Member States to establish national plans to promote multilingualism, including increasing the use and presence of a variety of languages in daily life. The 2 Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on certain legal aspects relating to cinematographic and other audiovisual works of 26/09/2001 (OJ C 43 of 16/02/2002); extended by the Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the follow-up of the Commission communication on certain legal aspects relating to cinematographic and other audiovisual works of 26/09/2001 (OJ C 123 of 30/04/2004); by the Commission Communication on the prolongation of the application of the Communication on the follow-up of the Commission Communication on certain legal aspects relating to cinematographic and other audiovisual works (Cinema Communication) of 26 September 2001 (OJ C 134 of 16/06/2007); and finally by the Commission Communication on the prolongation of the application of the Communication on the follow-up of the Commission Communication on certain legal aspects relating to cinematographic and other audiovisual works (Cinema Communication) of 26 September 2001 (OJ C 31 of 07/02/2009). 3 Multilingualism is not only part of cultural diversity but also part of a broad cultural policy objective, in the frame of the UNESCO Convention on the Promotion and the Protection of the Diversity of Cultural Expressions. 4 Article 22 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007 (2007/C 303/01), referred to in Article 6(1) of the Treaty on the European Union. 5 COM(2005) 596 final. 5

6 Communication also underlines the importance of promoting multilingualism in the information society.6 Necessity and proportionality 27. The Spanish authorities submit that the present measure, in the context of a general policy to support the Catalan language in all possible supports, is necessary to safeguard this regional language by spreading its use and by promoting various means of communication. The scheme has an incentive effect as it is aimed at providing financing for activities which would not take place without public funding. 28. Undertakings distributing cinema productions in the Catalan autonomous region may benefit from the measure to a greater extent than other distributors which are not active in the region. According to the information provided by the Spanish authorities in case N-481/2007 ES, around 800 films dubbed in Spanish are premiered every year in Spain, while only between 20 and 25 films are dubbed and only between 10 and 15 are subtitled in Catalan per year. 29. There appears to be no viable commercial market for cinema products dubbed and/or subtitled in Catalan. The Spanish authorities point out that in the Catalan autonomous region Catalan is the major usual language in five of seven territorial counties, while 95% of the population understands Catalan, 78% speaks it, 82% reads it and 62% writes it. 30. Given the absence of a viable commercial market for films dubbed and/or subtitled in Catalan, it is very likely that few commercial distributors would consider spending money on dubbing and/or subtitling films in Catalan, since the commercial value added to the product would be quite low. 31. Because of the relatively low commercial value of the aided activities, the maximum aid intensity of 100% can be accepted in the present case. Although the support received under the scheme may be cumulated with other forms of public or private support, there is no possibility for financing above costs. 32. Moreover, the measure is unlikely to significantly distort competition and have an appreciable effect on trade in view of the limited linguistic and geographical zone concerned by the scheme and the limited substitutability between films dubbed and/or subtitled in Catalan and films in other languages. Based on these considerations, the Commission considers that the measure is both necessary and proportionate to the objective of promoting the Catalan language and does not affect trading conditions to an extent contrary to the public interest. 33. The Commission takes note of the commitment from the Spanish authorities not to pay any aid granted under the present scheme to a possible beneficiary that would not yet have reimbursed previous aids declared illegal and incompatible, in particular state aids no. CR 48/99, CR 49/99 and CR 58/00 in Álava, CR 50/99, CR 53/99 and CR 59/00 in Guipúzcoa and CR 52/99, CR 54/99 and CR 60/00 in Vizcaya. As a result, the problem of the potential cumulative effect of the 6 See section III.3 Multilingualism in the information society of the Communication. 6

7 unrecovered incompatible aid with the notified aid, in application of the Deggendorf jurisprudence7, does not arise. 5. CONCLUSION 34. On the basis of the foregoing assessment, the Commission decided that the measure is compatible with the common market pursuant to Articles 107(3)(d) of the TFEU, taking also into account Article 167 of the TFEU and has accordingly decided not to raise objections to the notified measure. If this letter contains confidential information, which should not be published, please inform the Commission within fifteen working days after receipt of this letter by providing reasons. If the Commission does not obtain a reasoned request within this delay, it will presume that you agree with the publication towards third parties and with the publication of the entire wording in the authentic language on the following Internet website Applications must be sent by encrypted to: stateaidgreffe@ec.europa.eu or via Fax to the following address: European Commission Directorate-General for Competition State Aid Greffe Rue Joseph II 70 B-1049 Brussels Fax No: Yours faithfully, For the Commission Joaquin ALMUNIA Vice-President of the Commission 7 Case C-355/95P, Textilwerke Deggendorf GmbG (TWD) v. Commission [1997] ECR I-2549, paragraphs