Order;Summary — ECLI:EU:C:2020:346
Date: 2020-04-29
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-399/19 - 1 
Case C-399/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 May 2019 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
11 April 2019 
Appellant: 
Autorità per le Garanzie nelle Comunicazioni 
Respondents: 
BT Italia SpA 
Basictel SpA 
BT Enia Telecomunicazioni SpA 
Telecom Italia SpA 
PosteMobile SpA 
Vodafone Italia SpA 
  
Subject matter of the main proceedings 
Appeals brought before the Consiglio di Stato (Council of State, Italy) against the 
judgments of the Tribunale amministrativo regionale per il Lazio (Regional 
Administrative Court, Lazio, Italy) upholding the actions brought by the present 
respondents and annulling various decisions adopted by the Autorità per le 
Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) 
(‘AGCOM’), the present appellant, concerning the amount and method of 
payment of the contributions due to AGCOM for 2014, 2015 and 2016 from 
companies operating in the electronic communications sector and media services 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-399/19 
 
2  
companies, and specifying the online form and instructions for payment of the 
contributions due from those companies to AGCOM for 2015 and 2016. 
Subject matter of the reference 
The compatibility of the national legislation concerning the funding of AGCOM 
by electronic communications operators with Article 12 of Directive 2002/20/EC 
and with the case-law of the Court of Justice, in particular the judgment of 18 July 
2013 (Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12) 
Questions referred 
1. Does Article 12(1)(a) of Directive 2002/20/EC preclude national legislation 
which imposes on undertakings authorised under that directive the total 
administrative costs incurred by the national regulatory authority in 
organising and carrying out all the tasks, including regulatory, supervisory, 
dispute-resolution and sanctioning tasks, assigned to it under the European 
framework for electronic communications (laid down in Directives 
2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC), or are the activities 
mentioned in Article 12(1)(a) of Directive 2002/20/EC co-extensive with the 
‘ex ante regulatory activities’ performed by the national regulatory 
authority? 
2. Is Article 12(2) of Directive 2002/20/EC to be interpreted as meaning that 
the yearly overview of the administrative costs of the national regulatory 
authority and of the charges levied (a) may be published after the end of the 
financial year, in accordance with national laws on public accounting, in 
which the administrative charges have been levied and (b) permits the 
national regulatory authority to make the ‘appropriate adjustments’ even 
with reference to financial years that are not immediately consecutive? 
Provisions of EU law relied on 
Article 12 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) (‘the Authorisation Directive’) and recital 30 
thereof. 
Provisions of national law relied on 
Legge del 23 dicembre 2005, n. 266, ‒ Disposizioni per la formazione del bilancio 
annuale e pluriennale dello Stato (legge finanziaria 2006) (Law No 266 of 
23 December 2005 laying down provisions for drawing up the annual and 
multiannual budget of the State (Finance Law 2006)) (‘Law No 266/2005’). In 
particular, Article 1(65) and (66) provides that, from 2007 onwards, the operating 
AUTORITÀ PER LE GARANZIE NELLE COMUNICAZIONI 
 
3 
costs of AGCOM, in so far as they are not covered by funding from the State 
budget, are to be financed by the relevant market, and that the amount of the 
contribution to be paid by companies operating in the communications sector is to 
be determined by AGCOM and paid directly to AGCOM, and is to be capped at 
0.2% of the income recorded in the last set of company accounts approved before 
the adoption of the decision. 
Decreto legislativo del 1° agosto 2003, n. 259, ‒ Codice delle comunicazioni 
elettroniche (Legislative Decree No 259 of 1 August 2003 establishing the 
Electronic Communications Code) (‘the Electronic Communications Code’). In 
particular, Article 34(1) provides that ‘… undertakings providing networks or 
services in accordance with the general authorisation or which have been granted 
rights of use may be required to pay administrative charges to cover, in total, only 
the administrative costs incurred in the management, control and enforcement of 
the general authorisation scheme, rights of use, and specific obligations as referred 
to in Article 28(2) …. The administrative charges shall be imposed on individual 
undertakings in an objective, transparent and proportionate manner …’. In 
addition, Article 34(2a), inserted by Article 5 of the legge del 29 luglio 2015, n. 
115 (Law No 115 of 29 July 2015) (also known as the 2014 European Law) (‘Law 
No 115/2015’), provides that ‘in order to cover the total administrative costs 
incurred in carrying out the regulatory, supervisory, dispute-resolution and 
sanctioning tasks assigned by law to [AGCOM] in the fields referred to in 
paragraph 1, the amount of the administrative charges referred to in paragraph 1 
shall be determined in accordance with Article 1(65) and (66) of [Law 
No 266/2005] and shall be in proportion to the income earned by undertakings 
from the activities which are subject to the general authorisation or in respect of 
which rights of use have been granted’. Lastly, Article 34(2b) provides that ‘the 
Ministry, together with the Ministry of the Economy and Finances, and 
[AGCOM] shall publish annually the administrative costs incurred in the 
performance of the activities referred to in paragraph 1 and the total amount of the 
charges levied in accordance with paragraphs 2 and 2a. Where there is a 
difference between the total amount of charges and the administrative costs, 
appropriate adjustments shall be made’. 
Succinct presentation of the facts and the main proceedings 
1 The appellant AGCOM has brought five separate appeals against five judgments 
of the Tribunale amministrativo regionale per il Lazio (Regional Administrative 
Court, Lazio) (‘the TAR’) in which that court upheld the actions brought by the 
present respondents. 
2 In those five judgments, the TAR had annulled various decisions adopted by 
AGCOM concerning the amount and method of payment of the contributions due 
to AGCOM for 2014, 2015 and 2016 from companies operating in the electronic 
communications sector and media services companies, and specifying the online 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-399/19 
 
4  
form and instructions for payment of the contributions due from those companies 
to AGCOM for 2015 and 2016. 
3 In the TAR’s view, AGCOM had used an incorrect method for determining the 
basis of assessment for calculating the contributions due from the operators, in 
that it had included therein costs that should not have been included. 
4 In reaching its conclusion that the actions were well founded, the TAR referred in 
particular to the judgment of the Court of Justice in Case C-228/12. 
5 In the TAR’s view, Article 5 of Law No 115/2015, in so far as it introduced the 
new paragraph 2a into Article 34 of the Electronic Communications Code, was 
not applicable in the case at hand, in that it was a new, non-retroactive provision 
and therefore did not constitute a provision of authentic legislative interpretation 
of Law No 266/2005, in so far as it introduces rules governing the funding of 
AGCOM. 
6 The TAR also held that, in accordance with the case-law of the Court of Justice, 
the charges imposed on telephone operators could only cover the total costs 
incurred by AGCOM in performing its regulatory activities, which it identified 
exhaustively as comprising the costs relating to the issue, management, control 
and enforcement of the general authorisation scheme. Lastly, the TAR held that, 
in accordance with Article 12(2) of the Authorisation Directive, read in 
conjunction with recitals 30 and 31 thereof, AGCOM must adopt its yearly 
overview of administrative costs and charges before demanding the contributions, 
otherwise that provision would be rendered nugatory. 
7 AGCOM therefore appealed the judgments of the TAR before the referring court. 
8 The present respondents contend that the appeal should be dismissed and that the 
judgments at first instance should be upheld. 
Main arguments of the parties in the main proceedings 
9 In the proceedings at first instance, the present respondents argued, in the first 
place, that the AGCOM decisions mentioned above were unlawful in that 
AGCOM included in its calculation of the contributions due to it all income 
earned by operators in the electronic communications sector and quantified the 
contributions so as to cover all of the costs incurred in the electronic 
communications sector, rather than restricting its calculation to the costs incurred 
in performing ex ante market regulation activities, as it should have done when 
selecting the elements of the basis for calculation. 
10 In the AGCOM decisions at issue, for the purposes of calculating the 
contributions due, account was taken of income from, inter alia, the following 
activities: the installation of electronic and electrical plant and equipment, 
wholesale and retail trade in telecommunications equipment, programming and 
AUTORITÀ PER LE GARANZIE NELLE COMUNICAZIONI 
 
5 
broadcasting, and the activities of news agencies, dealers and other advertising 
services intermediaries. However, according to the present respondents, given 
their nature, those activities should not have been included in the basis for 
calculation at issue. 
11 In the second place, the present respondents complained that AGCOM had failed 
to adopt the yearly overview for 2014, setting out the total amount of charges 
levied and the total amount of administrative costs actually incurred during the 
year, before determining the contribution obligations for 2015. It was required to 
do so by Article 12 of the Authorisation Directive and the principle contained in 
that provision, which is that any charges must be imposed in an objective, 
transparent and proportionate manner. 
12 AGCOM submits that the national legislation is perfectly compatible with the 
provisions of Article 12 of Directive 2002/20/EC, in that the range of costs that 
are to be financed corresponds to that defined in the relevant EU legislation. 
Indeed, the costs that are to be borne by the electronic communications market are 
confined to those which correspond to the activities referred to in Article 12 of 
that directive (namely those which relate to the management, control and 
enforcement of the general authorisation scheme, rights of use, and specific 
obligations). In addition, the contribution scheme provided for in the national 
legislation is proportionate, inasmuch as it ensures a fair distribution of the burden 
on the market. 
13 AGCOM also adds that, in Case C-228/12, the Court of Justice had held that 
‘Article 12 of Directive 2002/20/EC … must be interpreted as meaning that it 
does not preclude legislation of a Member State … pursuant to which 
undertakings providing electronic communications services or networks are liable 
to pay a charge intended to cover all the costs incurred by the [national regulatory 
authority] which are not financed by the State, the amount of which being 
determined according to the income received by those undertakings, provided that 
that charge is exclusively intended to cover the costs relating to the activities 
mentioned in Article 12(1)(a), that the totality of the income obtained in respect of 
that charge does not exceed the total costs relating to those activities and that that 
charge is imposed upon individual undertakings in an objective, transparent and 
proportionate manner, which is for the national court to ascertain’. 
14 AGCOM also remarks that the European Commission launched the investigative 
procedure EU Pilot 7563/15/CNCT to gather information on Italy’s 
implementation of Article 12 of the Authorisation Directive and Article 3 of 
Directive 2002/21/EC (the Framework Directive). The Commission had requested 
clarification from the Italian Government regarding (i) the range of the 
administrative costs of the national regulatory authority (‘the NRA’) that could be 
financed by operator contributions, in light of the judgments of the Consiglio di 
Stato (Council of State), (ii) the effect of those judgments, in quantitative terms, 
on the NRA contribution and (iii) the ways in which it was ensured that the NRA 
had sufficient human resources and financial resources, in accordance with 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-399/19 
 
6  
Article 3 of Directive 2002/21/EC. Therefore, precisely in order to avert the 
commencement of infringement proceedings, and to dispel any doubts about the 
compatibility of the funding scheme established by Law No 266/2005 with 
Article 12 of the Authorisation Directive, Law No 115/2015 inserted paragraph 2a 
into Article 34 of the Electronic Communications Code. This clarified that the 
contribution scheme to which Article 12 of the Authorisation Directive referred 
has been implemented via the scheme provided for in Law No 266/2005 and 
covers all the activities within the NRA’s remit. After the enactment of Law 
No 115/2015, the European Commission asked ‘what degree of certainty is there 
that the new rule in paragraph 2a applies retroactively’ and also asked for copies 
of any judgments delivered in disputes concerning the funding of the Italian NRA. 
15 In one of its grounds of appeal, AGCOM submits that the TAR erred in 
concluding that it followed from the judgment of the Court of Justice in Case 
C-228/12 that the national legislation relating to the funding scheme for AGCOM 
was incompatible with EU law because it permitted the financing of a greater 
range of costs than that provided for in Article 12 of the Authorisation Directive. 
The Court of Justice did not, in AGCOM’s submission, state that Article 12 of the 
Authorisation Directive restricts the costs which may be financed from operator 
contributions to those which relate to the ex ante regulatory activities performed 
by AGCOM. 
16 The court of first instance was mistaken to restrict the range of costs to be taken 
into account in calculating the contributions due from operators to those which 
related only to ex ante regulation. It also erred in failing to find that the 
‘administrative costs that would be incurred in the management, control and 
enforcement of the general authorisation scheme, rights of use, and specific 
obligations’ were in reality the costs incurred by the NRA through operating 
within the electronic communications sector governed by the EU legislative 
framework. Such costs in fact go beyond the costs incurred merely through the 
regulatory activities performed by the NRA and are not co-extensive with such 
activities. 
17 AGCOM goes on to explain that the ex ante regulatory activities performed by a 
national regulatory authority consist in the adoption of standard measures of a 
restrictive and temporary nature addressed to particular parties and aimed at 
regulating, by means of special provisions, competition in a given market on 
which the presence of an operator in a dominant position — one that is potentially 
detrimental to competition — has been detected. Those activities are therefore 
only some of the many activities referred to in Article 12 of the Authorisation 
Directive. The general authorisation scheme for whose ‘management, control and 
enforcement’ the NRA is responsible is thus a complex scheme and one which 
includes all the regulatory, supervisory, sanctioning and dispute-resolution 
activities which are indispensable to the overall functioning of that scheme. 
18 In another of its grounds of appeal, AGCOM submits that the court of first 
instance erred in not finding that Article 5 of Law No 115/2015, which inserted 
AUTORITÀ PER LE GARANZIE NELLE COMUNICAZIONI 
 
7 
paragraph 2a into Article 34 of the Electronic Communications Code, was an 
interpretative provision (and that it therefore had retroactive effect, such that it 
was applicable to the case at hand, notwithstanding the fact that the actions were 
brought prior to the entry into force of Law No 115/2015). The TAR thus failed to 
have regard to the content of the explanatory memorandum to Law No 115/2015, 
in which the Italian Government explained that it was taking the opportunity to 
‘provide definitive clarification, by means of a provision of authentic legislative 
interpretation, of the findings reached by the Court of Justice of the European 
Union in its judgment of 18 July 2013 (Joined Cases C-228/12 to C-232/12 and 
C-254/12 to C-258/12) concerning the compatibility, in observance of the 
principles enshrined in EU law, of the self-funding scheme … with the scheme of 
administrative charges payable by operators authorised to provide electronic 
communications networks and services, referred to in Article 12 of the 
[Authorisation] Directive, to cover the administrative costs incurred by 
[AGCOM]’. 
19 As regards the adoption of the yearly overview, AGCOM maintains that it is not 
possible for a national regulatory authority to provide a yearly overview before the 
end of the financial year in question, that is to say, the year during which the 
charges must be levied. Thus, the yearly overview necessarily comes after the 
demand for contributions from operators for the year in question, inasmuch as it 
physically follows the end of the financial year and the approval of the authority’s 
final balance sheet. Moreover, the subsequent publication of the yearly overview 
does not mean that appropriate adjustments, which may also be carried out in a 
subsequent financial year, cannot be made to the contributions paid. 
20 Lastly, AGCOM submits that, in so far as concerns the provisions of Article 5 of 
Law No 115/2015, the court of first instance failed to conduct the necessary 
examination of the requirements usually identified by the Italian Corte 
costituzionale (Constitutional Court) in order for a legislative provision to be 
treated as a provision of authentic legislative interpretation. 
21 The present respondents contest the arguments put forward by AGCOM and also 
refer to the judgment of the Court of Justice in Case C-228/12, in which the Court 
held that ‘the charges imposed pursuant to Article 12 of the Authorisation 
Directive are not intended to cover all the administrative costs incurred by the 
NRA’. They also refer to the judgment in Case C-284/10, Telefónica de España, 
in which the Court of Justice emphasised that, although administrative charges 
‘may cover so-called “general” administrative costs, those must, however, relate 
only to the four activities referred to [namely the issue, management, control and 
enforcement of the applicable general authorisation scheme] and the fees may not 
thus include expenditure relating to other tasks such as the general supervisory 
activities of the national regulatory authority and, in particular, monitoring 
possible abuses of a dominant position. Indeed, that form of monitoring goes 
beyond the work strictly generated by the implementation of general 
authorisations’. The case-law of the Court of Justice therefore rebuts AGCOM’s 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-399/19 
 
8  
argument that the supervision and monitoring of the market and sanctioning 
activities should also be financed by contributions. 
22 The present respondents also emphasise that there must be a relationship of 
relevance between the contributions paid and the activities financed (in the sense 
that the contributions, and therefore the income to be taken into account in 
calculating them, must correlate with the costs for which funding is requested). 
There must also be proportionality (in the sense that the total paid in contributions 
must not exceed the total costs of the activities which they are to finance). 
AGCOM failed to observe those principles in drawing up the decisions at issue. It 
is precisely in order to verify the relevance and proportionality of the 
contributions that the [Authorisation Directive] imposes the obligation to adopt a 
yearly overview of the costs incurred and the charges levied. 
23 Since the new paragraph 2a of Article 34 does not expressly state that the new 
method for determining the basis of assessment for calculating the contributions, 
which is the income earned by the undertakings from activities to which the 
general authorisation or the grant of rights of use relates, is to apply retroactively, 
that provision cannot serve the function of providing authentic legislative 
interpretation of Law No 266/2005 on the funding scheme for AGCOM. 
24 Lastly, the present respondents emphasise the obligation to publish the yearly 
overview prior to calculation of the contributions. They also criticise AGCOM for 
the fact that the yearly overview published, albeit belatedly, fails clearly to set out 
individual cost and revenue items and merely separates them into ‘costs directly 
attributable to the communications sector’ and ‘costs indirectly attributable to the 
communications sector’, which does not enable the operators to verify that their 
contributions have been properly used to finance the costs referred to in Article 12 
of the Authorisation Directive. 
Succinct presentation of the reasons for the reference 
25 In the appeal proceedings, AGCOM requested the referring court, in the event of 
doubt as to the correct interpretation of the rules of EU law, to refer a question 
regarding that interpretation to the Court of Justice. 
26 By contrast, the respondents, taking the view that the judgments at first instance 
are correct, asserted that there was no need to request a preliminary ruling of the 
Court of Justice. They also add that the fact that, from May 2015 to date, the 
Commission has not commenced infringement proceedings against Italy with 
regard to the case-law on annual contributions means that that institution has not 
noted anything that infringes EU law in the judgments of the TAR and the 
Consiglio di Stato (Council of State). The national sectoral legislation is therefore 
compatible with the corresponding provisions of EU law. 
27 The referring court observes that it was precisely in response to the 
commencement of Infringement Procedure No 2013/4020, in which the 
AUTORITÀ PER LE GARANZIE NELLE COMUNICAZIONI 
 
9 
Commission asserted that Articles 6 and 12 of the Authorisation Directive had not 
been transposed into national law, that the Italian legislature inserted 
Article 34(2a) into the Electronic Communications Code, by means of Law 
No 115/2015. 
28 Nevertheless, the court of first instance took the view that that new legislation did 
not have retroactive effect and it therefore refrained from considering whether 
Article 34(2a) was compatible with Article 12 of the Authorisation Directive and 
remedied the failure to transpose criticised by the European Commission. 
29 The most recent set of national proceedings concerns a 2016 decision adopted by 
AGCOM to which Article 34(2a) should in any event apply, ratione temporis. 
30 The referring court also considers that the significance of the Commission’s 
launching of the investigative procedure EU Pilot 7563/15/CNCT with regard to 
Italy following the delivery of the judgment in Case C-228/12 should not be 
underestimated. 
31 In the observations which it submitted in Case C-228/12, and with particular 
reference to the meaning of ‘ex ante regulatory activities’, the Commission 
asserted that those activities are part of the tasks assigned to the national 
regulatory authorities under the Framework Directive and the Specific Directives 
and that the costs associated therewith may be financed using the administrative 
charges referred to in Article 12(1)(a) of the Authorisation Directive. However, 
Article 12(1)(a) allows costs incurred by national regulatory authorities other than 
those associated with their ex ante regulatory activities to be financed from those 
administrative charges. 
32 In Case C-228/12, the Court of Justice held that ‘Article 12 of Directive 
2002/20/EC … must be interpreted as meaning that it does not preclude legislation 
of a Member State … pursuant to which undertakings providing electronic 
communications services or networks are liable to pay a charge intended to cover 
all the costs incurred by the [national regulatory authority] which are not financed 
by the State, the amount of which being determined according to the income 
received by those undertakings, provided that that charge is exclusively intended 
to cover the costs relating to the activities mentioned in Article 12(1)(a), that the 
totality of the income obtained in respect of that charge does not exceed the total 
costs relating to those activities and that that charge is imposed upon individual 
undertakings in an objective, transparent and proportionate manner, which is for 
the national court to ascertain’. 
33 According to the referring court, however, in the judgment in Case C-228/12, the 
Court of Justice did not address the issue of the content and scope of ex ante 
regulatory activities, which is a question of central importance in the main 
proceedings. Indeed, the Court confined itself to stating that ‘it follows from the 
wording of Article 12(1)(a) of the Authorisation Directive that Member States 
may impose on undertakings providing a service or a network under the general 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-399/19 
 
10  
authorisation or to whom a right to use radio frequencies or numbers has been 
granted only the total administrative costs covering the management, control and 
enforcement of the general authorisation scheme and of rights of use and of 
specific obligations as referred to in Article 6(2) thereof, which may include costs 
for international cooperation, harmonisation and standardisation, market analysis, 
monitoring compliance and other market control, as well as regulatory work 
involving preparation and enforcement of secondary legislation and administrative 
decisions, such as decisions on access and interconnection’ and that ‘such charges 
may cover only the costs relating to the activities set out in the preceding 
paragraph, which cannot include expenditure relating to other tasks’. 
34 The referring court also cites the judgment of the Court of Justice of 28 July 2016 
in Case C-240/15, in which the Court held that ‘Article 3 of Directive 2002/21/EC 
… and Article 12 of Directive 2002/20/EC … must be interpreted as not 
precluding national legislation that subjects a national regulatory authority, within 
the meaning of Directive 2002/21, as amended by Directive 2009/140, to 
provisions of national law applicable to public finances and, in particular, to 
provisions for limiting and streamlining the spending of public administrative 
authorities …’. In that case too, however, the Court of Justice gave no ruling on 
the content of ex ante regulatory activities. 
35 The referring court also mentions that, in a judgment of the TAR to which 
reference has been made in the main proceedings, the TAR held that, in the 
judgment in Case C-228/12, the Court of Justice had found the legislative 
framework to be compatible [with EU law] and had found the activities listed in 
Article 12 of the Authorisation Directive to be fully the equivalent of the ‘only’ 
regulatory activities performed by AGCOM. 
36 The referring court does not endorse that view and considers that it is necessary, 
for the purposes of the judgment in the main proceedings, to request a preliminary 
ruling of the Court of Justice on the compatibility of the abovementioned national 
legislation with Article 12 of the Authorisation Directive.