# C_2006010EN.01000901.xml

| 14.1.2006 | EN | Official Journal of the European Union | C 10/9 |
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14.1.2006

EN

Official Journal of the European Union

C 10/9

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Reference for a preliminary ruling from the Consiglio di Stato by order of that court of 19 April 2005 in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni

(Case C-380/05)

(2006/C 10/19)

Language of the case: Italian

Reference has been made to the Court of Justice of the European Communities by order of the Consiglio di Stato of 19 April 2005, received at the Court Registry on 18 October 2005, for a preliminary ruling in the proceedings between Centro Europa 7 Srl and Ministero delle Comunicazioni (Ministry of Communications) e Autorità per le Garanzie nelle Comunicazioni, (Authority for Security of Communications) Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni (Directorate General for Authorisations and Concessions in the Ministry for Communications) on the following questions:

| 1. | Does Article 10 of the ECHR, as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in relation to technological development, secures network access and multiplicity of operators and renders duopolistic market behaviours unlawful? |
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1.

Does Article 10 of the ECHR, as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in relation to technological development, secures network access and multiplicity of operators and renders duopolistic market behaviours unlawful?

| 2. | Do the provisions of the EC Treaty which secure freedom to provide services and competition, on the interpretation provided by the Commission in the interpretative communication of 29 April 2000 on grants of rights under Community law, require the principles governing that matter to be capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individuals; and are those provisions and principles of the Treaty infringed by Article 3(7) of Italian law no 249/1997, and by Article 1 of decree-law no 352 of 24 December 2003 converted into Law no 112/2004 (Gasparri law), inasmuch as those provisions enabled individuals operating networks in breach of the limits laid down by competition law to continue to operate, thereby excluding operators, such as the appellant undertaking, which, though in possession of the relevant rights granted following a regular competitive procedure, were unable to carry on the activity in respect of which such rights were granted because of a failure to allocate frequencies (owing to their insufficient number or scarcity as a result of the continued exercise of rights by the owners of networks in breach of the limits on concentrations under antitrust law). |
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2.

Do the provisions of the EC Treaty which secure freedom to provide services and competition, on the interpretation provided by the Commission in the interpretative communication of 29 April 2000 on grants of rights under Community law, require the principles governing that matter to be capable of ensuring equal non-discriminatory treatment, as well as transparency, proportionality and respect for the rights of individuals; and are those provisions and principles of the Treaty infringed by Article 3(7) of Italian law no 249/1997, and by Article 1 of decree-law no 352 of 24 December 2003 converted into Law no 112/2004 (Gasparri law), inasmuch as those provisions enabled individuals operating networks in breach of the limits laid down by competition law to continue to operate, thereby excluding operators, such as the appellant undertaking, which, though in possession of the relevant rights granted following a regular competitive procedure, were unable to carry on the activity in respect of which such rights were granted because of a failure to allocate frequencies (owing to their insufficient number or scarcity as a result of the continued exercise of rights by the owners of networks in breach of the limits on concentrations under antitrust law).

| 3. | With effect from 25 July 2003, does Article 17 of Directive 2002/20/EC (1) (authorisation directive) render that directive directly effective in the internal legal order and oblige a Member State which has granted broadcasting rights (right to install networks or provide electronic communication services or the right to use frequencies) to bring them into line with Community rules; and does that entail the need actually to allocate the frequencies necessary for carrying on the activity in question. |
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3.

With effect from 25 July 2003, does Article 17 of Directive 2002/20/EC (1) (authorisation directive) render that directive directly effective in the internal legal order and oblige a Member State which has granted broadcasting rights (right to install networks or provide electronic communication services or the right to use frequencies) to bring them into line with Community rules; and does that entail the need actually to allocate the frequencies necessary for carrying on the activity in question.

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| 4. | Do Article 9 of framework directive 2002/21/EC (2) and Article 5 of the authorisation directive providing for transparent and non-discriminatory public procedures (Article 5) conducted on the basis of objective, transparent, non-discriminatory and proportionate criteria (Article 9) preclude a system providing for general authorisation under national law (Article 23(5) of law no 112/2004); by permitting the continued operation, under that system of networks in breach of limits and not selected under a competitive procedure, do those provisions ultimately impinge on the Community-law rights under (Article 17(2) of Directive 2002/20/EC) of other undertakings which are prevented from operating even though they have been successful in competitive procedures. |
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4.

Do Article 9 of framework directive 2002/21/EC (2) and Article 5 of the authorisation directive providing for transparent and non-discriminatory public procedures (Article 5) conducted on the basis of objective, transparent, non-discriminatory and proportionate criteria (Article 9) preclude a system providing for general authorisation under national law (Article 23(5) of law no 112/2004); by permitting the continued operation, under that system of networks in breach of limits and not selected under a competitive procedure, do those provisions ultimately impinge on the Community-law rights under (Article 17(2) of Directive 2002/20/EC) of other undertakings which are prevented from operating even though they have been successful in competitive procedures.

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| 5. | Do Article 9 of Directive 2002/21/EC (framework directive), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC (authorisation directive), and Article 4 of Directive 2002/77/EC (3), require the Member States to arrange for the cessation, at least as from 25 July 2003 (see Article 17 of the authorisation directive), of a situation in which frequencies are actually occupied (use of facilities without grant of rights or authorisations issued following a comparison of the applicants); thus, with regard to the broadcasting system operated, is the conduct of broadcasting precluded where there is no proper planning in regard to matters concerning the airwaves and no logical increase in pluralism and contradictions with rights actually awarded by the Member State following a public procedure. |
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5.

Do Article 9 of Directive 2002/21/EC (framework directive), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20/EC (authorisation directive), and Article 4 of Directive 2002/77/EC (3), require the Member States to arrange for the cessation, at least as from 25 July 2003 (see Article 17 of the authorisation directive), of a situation in which frequencies are actually occupied (use of facilities without grant of rights or authorisations issued following a comparison of the applicants); thus, with regard to the broadcasting system operated, is the conduct of broadcasting precluded where there is no proper planning in regard to matters concerning the airwaves and no logical increase in pluralism and contradictions with rights actually awarded by the Member State following a public procedure.

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| 6. | Is the derogation in the second subparagraph of Article 5(2) of Directive 2002/20/EC (authorisation directive), and in Article 4 of Directive 2002/77/EC, available to be relied on by the Member State solely in order to protect pluralism of information and to guarantee the protection of cultural or linguistic diversity and not in favour of operators of networks in breach of the limits laid down in national competition legislation. |
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6.

Is the derogation in the second subparagraph of Article 5(2) of Directive 2002/20/EC (authorisation directive), and in Article 4 of Directive 2002/77/EC, available to be relied on by the Member State solely in order to protect pluralism of information and to guarantee the protection of cultural or linguistic diversity and not in favour of operators of networks in breach of the limits laid down in national competition legislation.

| 7. | In order to benefit from the derogation under Article 5 of Directive 2002/20/EC, does the Member State have to indicate the objectives actually pursued by the national derogatory rules. |
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7.

In order to benefit from the derogation under Article 5 of Directive 2002/20/EC, does the Member State have to indicate the objectives actually pursued by the national derogatory rules.

| 8. | May that derogation be applied, in addition to the case of the concessionary of the public broadcasting service (RAI in Italy), in favour also of private operators not successful in competitive procedures and to the detriment of undertakings who may have duly been granted rights following a competitive procedure? |
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8.

May that derogation be applied, in addition to the case of the concessionary of the public broadcasting service (RAI in Italy), in favour also of private operators not successful in competitive procedures and to the detriment of undertakings who may have duly been granted rights following a competitive procedure?

| 9. | Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast). |
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9.

Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast).

| 10. | Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as law no 112/2004 providing for a new limit of 20 percent of resources linked to a new very wide criterion (the ICS — integrated communications system — Article 2(g) and Article 15 of law no 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the ‘relevant market’ is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non-pay TV operating via the airwaves (reference is made inter alia to the Commission cases COMP/JV. 37-BSKYB/Kirch Pay TV Regulation (EEC) No 4064/89 Merger Procedure 21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regulation (EEC) No 4064/89 Merger Procedure 2/04/2003. |
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10.

Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as law no 112/2004 providing for a new limit of 20 percent of resources linked to a new very wide criterion (the ICS — integrated communications system — Article 2(g) and Article 15 of law no 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the ‘relevant market’ is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non-pay TV operating via the airwaves (reference is made inter alia to the Commission cases COMP/JV. 37-BSKYB/Kirch Pay TV Regulation (EEC) No 4064/89 Merger Procedure 21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regulation (EEC) No 4064/89 Merger Procedure 2/04/2003.

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(1)  OJ L 108, de 24.4.2002, p. 21.

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(2)  OJ L 108, de 24.4.2002, p. 33.

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(3)  OJ L 249, de 17.9.2002, p. 21.

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