Opinion of the Advocate General — ECLI:EU:C:2007:505
Date: 2007-09-12
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Admissibility – Questions referred without sufficient information on the factual and legislative context (Art. 234 EC) 2. Preliminary rulings – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context (Arts 82 EC, 86(1)EC and 234 EC) 3. Preliminary rulings – Jurisdiction of the Court (Art. 234 EC) 4. Freedom to provide services – Electronic communications networks and services – Regulatory framework, authorisation and competition – Directives 2002/21, 2002/20 and 2002/77 (Art. 49 EC; European Parliament and Council Directives 2002/20, Arts 5(1) and (2), second subpara., and 7(3), and 2002/21, Art. 9(1); Commission Directive 2002/77, Art. 4) 1. In the context of the cooperation between the Court and national courts established by Article 234 EC, the decision making the reference must set out the precise reasons why the national court was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings. In that respect, a question referred by a national court is inadmissible where it does not give any indication as to the Community provisions which it requires to be interpreted or any explanation of the link it establishes between those provisions and the dispute in the main proceedings or the subject-matter of that dispute. (see paras 54-56) 2. The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the referring court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the area of competition, which is characterised by complex factual and legal situations. In that regard, questions concerning, by implication, Article 86(1) EC, read in conjunction with Article 82 EC, are inadmissible if the decision making the reference does not contain any indication regarding, inter alia, the definition of the relevant market, the calculation of the market shares held by the various undertakings operating on that market, and the supposed abuse of a dominant position. (see paras 57-59, 61-63) 3. As regards a question referred for a preliminary ruling, where all aspects of the main proceedings before the national court are confined within only one Member State, a reply might nonetheless be useful to that national court if its national law were to require that a national of that Member State must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation. (see paras 64, 69) 4. Article 49 EC and, from the date on which they became applicable, Article 9(1) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20 on the authorisation of electronic communications networks and services, and Article 4 of Directive 2002/77 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria. (see para. 116, operative part)