# C_2022257EN.01002401.xml

| 4.7.2022 | EN | Official Journal of the European Union | C 257/24 |
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4.7.2022

EN

Official Journal of the European Union

C 257/24

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 31 March 2022 — Nexive Commerce Srl and Others v Autorità per le Garanzie nelle Comunicazioni and Others

(Case C-226/22)

(2022/C 257/31)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Nexive Commerce Srl, Nexive Scarl, Nexive Services Srl, Nexive Network Srl, Nexive SpA, BRT SpA, A.I.C.A.I. Associazione Italiana Corrieri Aerei Internazionali, DHL Express (Italy) Srl, TNT Global Express Srl, Fedex Express Italy Srl, United Parcel Service Italia Srl, General Logistics Systems Enterprise Srl, General Logistics Systems Italy SpA, Federal Express Europe Inc. Filiale Italiana

Respondents: Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri, Ministero dell’Economia e delle Finanze, Ministero dello Sviluppo Economico

Questions referred

| 1. | Must the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, (1) as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, (2) be interpreted as meaning that they preclude national legislation, such as that laid down in Italian law (in Article 1(65) and (66) of legge 23 dicembre 2005, n. 266 (Law No 266 of 23 December 2005) and Article 65 of decreto legge 24 aprile 2017, n. 50 convertito, con modificazioni, dalla Legge 21 giugno 2017, n. 96 (Decree-Law No 50 of 24 April 2017, converted into law, with amendments, by Law No 96 of 21 June 2017)), that makes it possible to place the obligation to contribute financially to the operating costs of the regulatory authority for postal services exclusively on postal service providers, including those not providing services falling within the scope of the universal service, thereby allowing the possibility of excluding any form of public co-financing from the national budget? |
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1.

Must the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, (1) as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, (2) be interpreted as meaning that they preclude national legislation, such as that laid down in Italian law (in Article 1(65) and (66) of legge 23 dicembre 2005, n. 266 (Law No 266 of 23 December 2005) and Article 65 of decreto legge 24 aprile 2017, n. 50 convertito, con modificazioni, dalla Legge 21 giugno 2017, n. 96 (Decree-Law No 50 of 24 April 2017, converted into law, with amendments, by Law No 96 of 21 June 2017)), that makes it possible to place the obligation to contribute financially to the operating costs of the regulatory authority for postal services exclusively on postal service providers, including those not providing services falling within the scope of the universal service, thereby allowing the possibility of excluding any form of public co-financing from the national budget?

| 2. | Must the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, be interpreted as meaning that they make it possible to include, in the costs that can be financed by postal service operators, costs to be incurred for regulatory activities concerning postal services outside the scope of the universal service, and costs for administrative and policy-making structures (‘cross-sector’ structures) whose activity, although not directly aimed at regulating the postal services markets, nevertheless contributes to the performance of all the Authority’s institutional tasks, with the consequent possibility that they might be indirectly and partially (pro rata) allocated to the postal services sector? |
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2.

Must the fourth indent of the second subparagraph of Article 9(2) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, be interpreted as meaning that they make it possible to include, in the costs that can be financed by postal service operators, costs to be incurred for regulatory activities concerning postal services outside the scope of the universal service, and costs for administrative and policy-making structures (‘cross-sector’ structures) whose activity, although not directly aimed at regulating the postal services markets, nevertheless contributes to the performance of all the Authority’s institutional tasks, with the consequent possibility that they might be indirectly and partially (pro rata) allocated to the postal services sector?

| 3. | Do the principles of proportionality and non-discrimination, the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, preclude national legislation, such as the Italian provisions (laid down in Article 1(65) and (66) of Law No 266 of 23 December 2005 and Article 65 of Decree-Law No 50 of 24 April 2017, converted into law, with amendments, by Law No 96 of 21 June 2017), imposing an obligation on postal sector providers to contribute to the financing of the regulatory authority for the postal sector, without any possibility of distinguishing the position of express courier service providers from that of universal service providers and, therefore, without any possibility of appreciating the different intensity of the regulatory activities carried out by the national regulatory authority in relation to the different types of postal services? |
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3.

Do the principles of proportionality and non-discrimination, the fourth indent of the second subparagraph of Article 9(2), Article 9(3) and Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008, amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services, preclude national legislation, such as the Italian provisions (laid down in Article 1(65) and (66) of Law No 266 of 23 December 2005 and Article 65 of Decree-Law No 50 of 24 April 2017, converted into law, with amendments, by Law No 96 of 21 June 2017), imposing an obligation on postal sector providers to contribute to the financing of the regulatory authority for the postal sector, without any possibility of distinguishing the position of express courier service providers from that of universal service providers and, therefore, without any possibility of appreciating the different intensity of the regulatory activities carried out by the national regulatory authority in relation to the different types of postal services?

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(1)  OJ 1998 L 15, p. 14.

(2)  OJ 2008 L 52, p. 3.

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