Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 12 December 2023 – Persidera SpA v Autorità per le Garanzie nelle Comunicazioni, Ministero delle Imprese e del Made in Italy

(Case C-766/23, Persidera-2)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Persidera SpA

Respondents: Autorità per le Garanzie nelle Comunicazioni, Ministero delle Imprese e del Made in Italy

Questions referred

Must EU law and, in particular, Articles 3(3) and (3a), and 8 and 9 of Directive 2002/21/EC (‘the Framework Directive’), ¹ as amended by Directive 2009/140/EC, ² and Articles 5, 6, 8, 9 and 45 of Directive (EU) 2018/1972, ³ be interpreted as precluding a system of the kind introduced in the Italian Republic by Article 1(1031a) of the Legge di Bilancio 2018 (2018 Budget Law), as introduced by Article 1(1105) of the Legge di Bilancio 2019 (2019 Budget Law), which deprives the independent administrative authority of its regulatory functions, or at least significantly limits them, by providing for the award of additional transmission capacity by means of a fee-based procedure, with that award being granted to the highest offer and with the participation of the incumbents?

Must EU law, and in particular Articles 8 and 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), Articles 3, 5, 7 and 14 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), ¹ 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 ² recitals 11 and 20 of Decision (EU) 2017/899 and the principles of fairness, non-discrimination, protection of competition and legitimate expectations, be interpreted as precluding a system such as that introduced by the relevant national legislation (Article 1(1030), (1031), (1031a), (1031b) and (1032) of Legge n. 205/2017 (Law No 205/2017)), as well as Decisions Nos 39/19/CONS, 128/19/CONS and 564/2020/CONS of the Autorità per le Garanzie nelle Comunicazioni (Regulatory Authority for Communications) and related measures for assigning rights of use of frequencies for the digital television service, which for the purpose of converting ‘rights of use of frequencies’ into ‘rights of use of transmission capacity’ does not require an equivalence-based conversion, but reserves part of that capacity for a fee-based award procedure, by imposing additional costs on the operator so it ensures it retains rights that have been lawfully acquired over time?

Must EU law and, in particular, Articles 8 and 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), Articles 3, 5, 7 and 14 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), 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, recitals 11 and 20 of Decision (EU) 2017/899, the principles of fairness, non-discrimination, protection of competition and legitimate expectations, as well as the principles of proportionality and appropriateness, be interpreted as precluding a system of the kind introduced in the Italian Republic by Article 1(1101) to (1108) of the 2019 Budget Law, Article 1(1030), (1031), (1031a), (1031c), (1032), (1033), (1034) and (1037) of the 2018 Budget Law, by Decisions Nos 39/19/CONS (PNAF), 128/19/CONS and 129/19/CONS of the Regulatory Authority for Communications and related measures for assigning rights of use of frequencies for the digital television service, which does not adopt measures of a structural nature [and –] despite the existence of compensatory and/or non-structural rebalancing measures – in order to remedy the situation of inequality established previously provides for a fee-based procedure that imposes additional costs and charges on the operator; [moreover,] does [EU] law, having regard in particular to the principles of proportionality and appropriateness, as well as the principles laid down in the judgment in Persidera, preclude a system such as the one described, particularly in view of the overall evolution of the system and the ‘anomalies’, ‘weaknesses’ and ‘irregularities’ thereof, identified in the national and supranational case-law mentioned in the grounds of this order, or conversely are the non-structural measures adopted by the regulatory authority sufficient to rebalance the system?

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¹     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).

¹     Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37)

¹     Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast) (OJ 2018 L 321, p. 36).

¹     OJ 2002 L 108, p. 21.

¹     OJ 2002 L 249, p. 21.