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2017-597 Report – Persidera SpA v Autorità per le Garanzie nelle Comunicazioni

Court Court of Justice
Date of ruling 26 July 2017
Case name (short version) Persidera SpA v Autorità per le Garanzie nelle Comunicazioni & Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti
Case Citation Case C-112/16 P

ECLI:EU:C:2017:597

Key words Reference for a preliminary ruling — Electronic communications — Telecommunication services — Directives 2002/20/EC, 2002/21/EC and 2002/77/EC — Equal treatment — Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies — Taking into consideration analogue radio frequencies used unlawfully — Correspondence between the number of analogue radio frequencies held and the number of digital radio frequencies obtained
Basic context The Consiglio di Stato (Council of State, Italy) made a request for a preliminary ruling to the Court of Justice concerning the interpretation of Articles 56, 101, 102 and 106 TFEU, Articles 3, 5 and 7 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Authorisation Directive’), Article 9 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140 (‘the Framework Directive’), Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21) (‘the Competition Directive’) and the principles of non-discrimination, transparency, freedom of competition, proportionality, effectiveness and pluralism of information.

The request was made in the course of proceedings between Persidera SpA, on the one hand, and the Autorità per le Garanzie nelle Comunicazioni (Communications supervisory authority, Italy) (‘AGCOM’) and the Ministero dello Sviluppo economico, delle Infrastrutture e dei Trasporti (Ministry for Economic Development, Infrastructure and Transport, Italy), on the other, concerning the assignment of rights to use radio frequencies for digital terrestrial television broadcasting.

 

Points arising – admissibility 23      In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 19 and the case-law cited).

24      It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for this Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 37 and the case-law cited, and of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel, C‑231/15, EU:C:2016:769, paragraph 16).

27      In that regard, it must be recalled that the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice, of which the referring court should be aware (see, to that effect, judgments of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraphs 18 and 19 and the case-law cited, and of 27 October 2016, Audace and Others, C‑114/15, EU:C:2016:813, paragraph 35).

28      Thus, it is essential, as is stated in Article 94(c) of the Rules of Procedure, that the reference for a preliminary ruling itself must contain a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the case before the referring court.

29      It is also essential, as is provided for in Article 94(a) of the Rules of Procedure, that the order for reference itself contains, at least, an account of the facts on which the questions are based. In accordance with the case-law of the Court, those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraph 58 and the case-law cited, and order of 12 December 2013, Umbra Packaging, C‑355/13, not published, EU:C:2013:867, paragraph 23 and the case-law cited).

Points arising – substance  56      Having regard to the foregoing considerations, the questions referred are to be answered as follows:

–        Article 9 of the Framework Directive, Articles 3, 5 and 7 of the Authorisation Directive, Articles 2 and 4 of the Competition Directive must be interpreted to the effect that they preclude a national provision which, for the purposes of converting existing analogue channels into digital networks, takes into consideration unlawfully managed analogue channels, where that leads to an unfair competitive advantage being prolonged, or even reinforced;

–        the principles of non-discrimination and proportionality must be interpreted to the effect that they preclude a national provision which, on the basis of the same conversion criterion, leads to a proportionately larger reduction in the number of digital networks assigned compared with the number of analogue channels operated to the detriment of one operator compared to its competitors, unless it is objectively justified and proportionate to its objective. The continuity of television output constitutes a legitimate objective capable of justifying such a difference in treatment. However, a provision which would lead to operators already present on the market being assigned a number of digital radio frequencies which is greater than the number that is sufficient to ensure the continuity of their television output would go beyond what is necessary to achieve that objective and would, thus, be disproportionate.

 

 

Intervention Radiotelevisione italiana SpA (RAI), Reti Televisive Italiane SpA (RTI), Elettronica Industriale SpA, Television Broadcasting System Spa, Premiata Ditta Borghini e Stocchetti di Torino Srl, Rete A SpA, Centro Europa 7 Srl, Prima TV SpA, Sky Italia Srl, Elemedia SpA
Interim measures
Order 1.      Article 9 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, Articles 3, 5 and 7 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140, and Articles 2 and 4 of Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted to the effect that they preclude a national provision which, for the purposes of converting existing analogue channels into digital networks, takes into consideration unlawfully managed analogue channels, where that leads to an unfair competitive advantage being prolonged, or even reinforced.

2.      The principles of non-discrimination and proportionality must be interpreted to the effect that they preclude a national provision which, on the basis of the same conversion criterion, leads to a proportionately larger reduction in the number of digital networks assigned compared with the number of analogue channels operated to the detriment of one operator compared to its competitors, unless it is objectively justified and proportionate to its objective. The continuity of television output constitutes a legitimate objective capable of justifying such a difference in treatment. However, a provision which would lead to operators already present on the market being assigned a number of digital radio frequencies which is greater than the number that is sufficient to ensure the continuity of their television output would go beyond what is necessary to achieve that objective and would, thus, be disproportionate.

 

Fine changed No
Case duration 17 months
Judge-rapporteur Jürimäe
Advocate-general Kokott
Notes on academic writings

 

About the Author

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law. He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters. He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.


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