# C_2023252EN.01003201.xml

| 17.7.2023 | EN | Official Journal of the European Union | C 252/32 |
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17.7.2023

EN

Official Journal of the European Union

C 252/32

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Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 26 April 2023 — Autorità per le Garanzie nelle Comunicazioni and Others v Telecom Italia SpA and Others

(Case C-273/23, Autorità per le Garanzie nelle Comunicazioni and Others)

(2023/C 252/35)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Autorità per le Garanzie nelle Comunicazioni, Ministero dello Sviluppo economico, Telecom Italia SpA

Respondents: Telecom Italia SpA, Vodafone Italia SpA, Fastweb SpA, Autorità per le Garanzie nelle Comunicazioni, Tiscali Italia SpA, BT Italia SpA

Question referred

Must Directive 97/33/EC, (1) and in particular Article 5 thereof, and Directive 2002/22/EC, (2) and in particular Article 13 thereof, applicable ratione temporis, and the principles of transparency, least market distortion, non-discrimination and proportionality, be interpreted as meaning that:

| (a) | it is permissible for national legislation to impose by law the extension to mobile telephone operators of obligations to contribute to the financing of unfair burdens arising from the provision of the same universal service, without making such cases subject to verification by the NRA that there is a competitive relationship or substitutability between the contributing operators and the designated operator for the provision of that service within the same relevant market under competition law; |
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(a)

it is permissible for national legislation to impose by law the extension to mobile telephone operators of obligations to contribute to the financing of unfair burdens arising from the provision of the same universal service, without making such cases subject to verification by the NRA that there is a competitive relationship or substitutability between the contributing operators and the designated operator for the provision of that service within the same relevant market under competition law;

| (b) | NRAs are permitted, in addition to or as an alternative to the criterion of substitutability between fixed and mobile network services, for the purposes of verifying the unfair nature of the burden, to use other criteria — and if so, which ones — to establish a financing obligation on mobile operators? |
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(b)

NRAs are permitted, in addition to or as an alternative to the criterion of substitutability between fixed and mobile network services, for the purposes of verifying the unfair nature of the burden, to use other criteria — and if so, which ones — to establish a financing obligation on mobile operators?

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(1)  Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32).

(2)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

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