Information;Order — ECLI:EU:C:2021:1031
Date: 2021-12-16
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C­467/21 – 1 
Case C­467/21 
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:  
30 July 2021 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
22 July 2021 
Appellant:  
Comune di Venezia 
Respondents:  
Telecom Italia SpA 
Infrastrutture Wireless Italiane SpA – Inwit SpA 
Other party to the proceedings:  
Regione Veneto 
  
Subject matter of the main proceedings 
Regulation of a local authority governing the siting of mobile telephone apparatus 
within the territory of that local authority – Individual administrative act, based on 
that regulation, which restricts the installation of a radio base antenna for mobile 
telephone apparatus – National legislation which, as interpreted by the prevailing 
case-law, gives local authorities the power to define siting criteria for mobile 
telephone apparatus, including the power to prohibit the installation of antennae 
on specific sites or to require the apparatus at issue to be a certain distance from 
those sites – Compatibility of that national legislation with EU law 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­467/21 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Does EU law preclude a provision of national legislation (such as Article 8(6) of 
legge 22 febbraio 2001, n. 36 (Law No 36 of 22 February 2001)), which is 
understood and applied as allowing individual local authorities to define siting 
criteria for mobile telephone apparatus, which may be expressed in the form of 
prohibitions, such as a prohibition on placing antennae in specific areas or within 
a certain distance of a certain type of building? 
Provisions of EU law relied on 
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 
2002 on a common regulatory framework for electronic communications networks 
and services (Framework Directive), in particular Articles 1(3a) and 8 thereof 
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), in particular Articles 3(1) 
and (2) and 8(1) and (2) thereof 
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), in particular Articles 9 and 11(1) thereof 
Provisions of national law relied on 
Regolamento edilizio del Comune di Venezia (Venice Municipal Building Code), 
approved by delibere del Consiglio Comunale n. 30 del 24-25 febbraio 2003 e n. 
83 del 13 giugno 2006 (Municipal Council Decisions No 30 of 24-25 February 
2003 and No 83 of 13 June 2006) and by delibera della Giunta Regionale della 
Regione Veneto n. 2311 del 28 luglio 2009 (Veneto Regional Council Decision 
No 2311 of 28 July 2009), subsequently supplemented by delibera del Consiglio 
Comunale n. 107 del 15 settembre 2008 (Municipal Council Decision No 107 of 
15 September 2008), in particular Article 50 thereof 
Legge del 22 febbraio 2001, n. 36 – Legge quadro sulla protezione dalle 
esposizioni a campi elettrici, magnetici ed elettromagnetici (Law No 36 of 
22 February 2001 – Framework Law on protection from exposure to electric, 
magnetic and electromagnetic fields), in particular Articles 4(1)(a) and 8(6) 
thereof 
‘Article 4 – Functions of the State 
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1. The State shall: 
a) determine exposure limits, warning values and quality targets, expressed as 
field values as defined in Article 3(1)(d)(2), in keeping with the overriding 
national interest in defining uniform criteria and uniform legislation with respect 
to the aims referred to in Article 1.  
… 
Article 8 – Powers of the regions, provinces and municipalities 
6. Municipalities may adopt regulations to ensure the correct siting of 
apparatus with respect to town and regional planning and to minimise the 
population’s exposure to electromagnetic fields … 
Decreto legislativo del 1° agosto 2003, n. 259 – Codice delle comunicazioni 
elettroniche (Legislative Decree No 259 of 1 August 2003 – Electronic 
Communications Code), in particular Articles 86(3), 87(1), (3) and (9), and 87 bis 
thereof 
Article 86 – Electronic communications infrastructure and rights of way 
3. The public communication networks infrastructure referred to in Articles 87 
and 88 and the infrastructure works for the realisation of high-speed fibre-optic 
electronic communications networks … shall for all purposes be considered to be 
primary urbanisation works as referred to in Article 16(7) of decreto del 
Presidente della Repubblica 6 giugno 2001, n. 380 (Presidential Decree No 380 of 
6 June 2001), despite remaining the property of the respective operators, and the 
legislation in force in that field shall apply to them. 
Article 87 – Authorisation procedures for communications infrastructure for radio 
apparatus 
1. Installation … shall be authorised by the Local Authorities once it has been 
established by the Authority competent to carry out checks under Article 14 of 
Law No 36 of 22 February 2001 that the project is compatible with the exposure 
limits, warning values and quality objectives, uniformly established at national 
level under the provisions of that law and its implementing measures. … 
3. In the case of the installation of apparatus using UMTS technology or other 
technology with single antenna power equal to or lower than 20 Watts, it shall be 
sufficient to provide a certified statement giving notification of the 
commencement of the activity, subject to observance of the exposure limits, 
warning values and quality objectives referred to above. 
9. The authorisation requests and notifications of activity referred to in the 
present article, as well as those relating to modification of the characteristics of 
existing apparatus, shall be accepted if, within 90 days of submission of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­467/21 
 
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project and the related application, with the exception of the refusal referred to in 
paragraph 8, no refusal is issued or negative opinion given by the Authority 
competent to carry out checks under Article 14 of Law No 36 of 22 February 
2001. 
Article 87 bis – Simplified procedures for certain types of apparatus 
1. Apparatus for public (State-controlled) electronic communications networks 
and ancillary works necessary for the operation of those apparatus shall have 
public interest status, within the meaning of Article 12 et seq. of decreto del 
Presidente della Repubblica 8 giugno 2001, n. 327 (Presidential Decree No 327 of 
8 June 2001).’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The respondents brought an action before the Tribunale Amministrativo 
Regionale del Veneto (Veneto Regional Administrative Court, Italy) seeking the 
annulment of Article 50 of the Venice Municipal Building Code approved by the 
Veneto Region, the annulment of any other connected act, as well as the 
annulment of the individual administrative act by which the Municipality of 
Venice denied them authorisation to construct a new mobile telephone radio base 
station on the flat roof of a hotel in Mestre-Venice. 
2 By judgment of 22 May 2018, the Veneto Regional Administrative Court upheld 
the action brought by the respondents. 
3 The Municipality of Venice appealed that judgment before the referring court. In 
support of its appeal the Municipality raised various pleas alleging illegality and 
misuse of powers. In particular, the Municipality alleged an infringement of 
Article 50 of its own Building Code, of Article 8 of Law No 36 of 22 February 
2001, and of circolare della Regione Veneto n. 12/2001 (Veneto Regional Circular 
No 12/2001). The Veneto Region was not represented in the proceedings. 
4 By a written submission of 3 March 2021, the respondents requested that the 
Consiglio di Stato (Council of State) stay the proceedings, asserting that the 
question already referred to the Court of Justice by the Council of State in Order 
No 2033 of 27 March 2019 (reproduced in this request for a preliminary ruling) 
must first be resolved. The referring court upheld that request. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court considers that certain aspects of the provisions of national law 
set out above, in particular Article 8(6) of Law No 36/2001, may not be 
compatible with a number of provisions of EU law. In particular, in its view, 
Directive 2002/21 (the Framework Directive), Directive 2002/22 (the Universal 
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Service Directive) and Directive 2002/20 (the Authorisation Directive) are at 
issue, particularly the following provisions: 
Framework directive 
‘Article 1 Scope and aim 
3a. Measures taken by Member States regarding end-users’ access to, or use of, 
services and applications through electronic communications networks shall 
respect the fundamental rights and freedoms of natural persons, as guaranteed by 
the European Convention for the Protection of Human Rights and Fundamental 
Freedoms and general principles of Community law. Any of these measures 
regarding end-users’ access to, or use of, services and applications through 
electronic communications networks liable to restrict those fundamental rights or 
freedoms may only be imposed if they are appropriate, proportionate and 
necessary within a democratic society, and their implementation shall be subject 
to adequate procedural safeguards in conformity with the European Convention 
for the Protection of Human Rights and Fundamental Freedoms and with general 
principles of Community law, including effective judicial protection and due 
process. …’ 
‘Article 8 Policy objectives and regulatory principles 
1. Member States shall ensure that in carrying out the regulatory tasks 
specified in this Directive and the Specific Directives, the national regulatory 
authorities take all reasonable measures which are aimed at achieving the 
objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate 
to those objectives. 
Unless otherwise provided for in Article 9 regarding radio frequencies, Member 
States shall take the utmost account of the desirability of making regulations 
technologically neutral and shall ensure that, in carrying out the regulatory tasks 
specified in this Directive and the Specific Directives, in particular those designed 
to ensure effective competition, national regulatory authorities do likewise. …’ 
2. The national regulatory authorities shall promote competition in the 
provision of electronic communications networks, electronic communications 
services and associated facilities and services by inter alia: 
(a) ensuring that users, including disabled users, elderly users, and users with 
special social needs derive maximum benefit in terms of choice, price, and 
quality; 
(b) ensuring that there is no distortion or restriction of competition in the 
electronic communications sector, including the transmission of content; 
… 
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(d) encouraging efficient use and ensuring the effective management of radio 
frequencies and numbering resources. 
3. The national regulatory authorities shall contribute to the development of the 
internal market by inter alia: 
(a) removing remaining obstacles to the provision of electronic communications 
networks, associated facilities and services and electronic communications 
services at European level; 
(b) encouraging the establishment and development of trans-European networks 
and the interoperability of pan-European services, and end-to-end connectivity; 
…’ 
(d) cooperating with each other, with the Commission and [the Body of 
European Regulators for Electronic Communications] so as to ensure the 
development of consistent regulatory practice and the consistent application of 
this Directive and the Specific Directives. 
4. The national regulatory authorities shall promote the interests of the citizens 
of the European Union by inter alia: 
(a) ensuring all citizens have access to a universal service specified in Directive 
2002/22/EC (Universal Service Directive); … 
5. The national regulatory authorities shall, in pursuit of the policy objectives 
referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-
discriminatory and proportionate regulatory principles by, inter alia: 
(a) promoting regulatory predictability by ensuring a consistent regulatory 
approach over appropriate review periods; 
(b) ensuring that, in similar circumstances, there is no discrimination in the 
treatment of undertakings providing electronic communications networks and 
services; 
(c) safeguarding competition to the benefit of consumers and promoting, where 
appropriate, infrastructure-based competition; 
(d) promoting efficient investment and innovation in new and enhanced 
infrastructures, including by ensuring that any access obligation takes appropriate 
account of the risk incurred by the investing undertakings and by permitting 
various cooperative arrangements between investors and parties seeking access to 
diversify the risk of investment, whilst ensuring that competition in the market 
and the principle of non-discrimination are preserved; 
(e) taking due account of the variety of conditions relating to competition and 
consumers that exist in the various geographic areas within a Member State; 
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(f) imposing ex-ante regulatory obligations only where there is no effective and 
sustainable competition and relaxing or lifting such obligations as soon as that 
condition is fulfilled.’ 
The Universal Service Directive 
‘Article 3 Availability of universal service 
1. Member States shall ensure that the services set out in this Chapter are made 
available at the quality specified to all end-users in their territory, independently 
of geographical location, and, in the light of specific national conditions, at an 
affordable price.  
2. Member States shall determine the most efficient and appropriate approach 
for ensuring the implementation of universal service, whilst respecting the 
principles of objectivity, transparency, non-discrimination and proportionality. …’ 
‘Article 8 Designation of undertakings 
1. Member States may designate one or more undertakings to guarantee the 
provision of universal service as identified in Articles 4, 5, 6 and 7 and, where 
applicable, Article 9(2) so that the whole of the national territory can be covered. 
Member States may designate different undertakings or sets of undertakings to 
provide different elements of universal service and/or to cover different parts of 
the national territory. 
2. When Member States designate undertakings in part or all of the national 
territory as having universal service obligations, they shall do so using an 
efficient, objective, transparent and non-discriminatory designation mechanism, 
whereby no undertaking is a priori excluded from being designated. Such 
designation methods shall ensure that universal service is provided in a cost-
effective manner and may be used as a means of determining the net cost of the 
universal service obligation in accordance with Article 12.’ 
The Authorisation Directive 
‘Article 9 Declarations to facilitate the exercise of rights to install facilities and 
rights of interconnection 
At the request of an undertaking, national regulatory authorities shall, within one 
week, issue standardised declarations, confirming, where applicable, that the 
undertaking has submitted a notification under Article 3(2) and detailing under 
what circumstances any undertaking providing electronic communications 
networks or services under the general authorisation has the right to apply for 
rights to install facilities, negotiate interconnection, and/or obtain access or 
interconnection in order to facilitate the exercise of those rights for instance at 
other levels of government or in relation to other undertakings. …’ 
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‘Article 11 Information required under the general authorisation, for rights of use 
and for the specific obligations  
1. Without prejudice to information and reporting obligations under national 
legislation other than the general authorisation, national regulatory authorities may 
only require undertakings to provide information under the general authorisation, 
for rights of use or the specific obligations referred to in Article 6(2) that is 
proportionate and objectively justified …’  
6 Given the insight to be gained from the provisions of the relevant directives and 
from European case-law, the referring court has doubts as to the compatibility of 
national law with that law, particularly Article 8(6) of Law No 36/2001, which 
allows individual local authorities to determine criteria for the siting of mobile 
telephone apparatus (including in the form of prohibitions), by, for example, 
prohibiting the placing of antennae on certain buildings (hospitals, nursing homes, 
and so on) or by imposing specific and predetermined distances.  
7 Those doubts include the interpretation of the legislation in the prevailing national 
case-law – an interpretation also shared by the referring court – according to 
which regional authorities are permitted – within the scope of their respective 
competences – to identify criteria for the siting of mobile telephone apparatus 
(including in the form of prohibitions), such as the prohibition on placing 
antennae on certain buildings (hospitals, nursing homes, and so on), whereas they 
are not allowed to introduce siting restrictions consisting in vague and varying 
distance criteria (minimum distance requirements to be met when installing 
apparatus in relation to the outer perimeter of buildings intended for housing, 
offices or activities other than those specifically connected with the operation of 
those apparatus, of hospitals, nursing homes, retirement homes, places of worship, 
schools and crèches as well as of listed property within the meaning of the 
legislation on cultural assets or property identified as buildings of historical or 
architectural value, of public parks, play parks, green picnic areas and sports 
grounds). 
8 The referring court highlights how the regulatory favour which underpins the law 
in this domain, expressed in the legislation – particularly in Articles 87 and 87 bis 
of the Electronic Communications Code – in the establishment of ‘silent consent’ 
in respect of requests to install communications infrastructure for radio apparatus, 
and in the use of notification of commencement of activity and of the certified 
statement giving notification of the commencement of the activity, conflicts with 
the guidelines which, generally, restrict the use of such simplification mechanisms 
to cases where the request satisfies all the conditions that the law stipulates must 
be satisfied in order for that request to be accepted. In the dispute which has arisen 
as a result of the regulations of the Municipality of Venice, for example, even if 
before the possible expiry of the time limit for the realisation of consent, breach of 
the restrictive regulatory provision, as understood, would prevent the right to 
install being secured upstream, within the terms provided for by law. According to 
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the referring court, those guidelines appear to conflict with the procedural 
simplification objectives and the regulatory favour referred to above. 
9 In the light of that potential conflict, the referring court notes that in this matter 
the need has arisen, even in the light of the more detailed rules, to weigh up the 
opposing requirements and primary interests. 
10 In its view, EU law has contributed to the emergence of a dual component which, 
although already apparent from national law, appears to be of fundamental 
importance in the aforementioned weighing-up of requirements and interests: the 
right of citizens to information and their right to make and receive telephone calls 
(and data communications) everywhere and therefore without spatial or territorial 
limitations (see also Article 4 of the Universal Service Directive). The referring 
court also considers that that right includes – even if it is a secondary element – 
the ability to be able to call emergency telephone numbers and, in particular, the 
single European emergency call number free of charge from any telephone (see 
recital 12 of the Universal Service Directive) and to be located, even without 
communicating, in situations where this is necessary to protect the person’s own 
life or the safety of others (recital 36). In order to give effect to that right, EU law 
has imposed specific obligations on service operators whereby universal service 
operators are required to maintain the integrity of the network as well as service 
continuity and quality (recital 14), in such a way as to ensure the effectiveness of 
that right for all users uniformly throughout the European Union. In that regard, 
the right of users to be able to call, be called and send data at any time and in any 
place constitutes a right which must be fulfilled and which cannot be arbitrarily 
constricted or limited by standardisation at national level, let alone at a lower 
level. 
11 However those rights are liable to conflict with those concerning protection of the 
environment, health and proper regional planning. The latter set of rights gives 
rise to interests which, in this instance, point in the same direction: maximising 
the protection of the environment would require there to be no artificial 
electromagnetic emissions and as such no equipment/antennae capable of 
producing them; the right to proper regional planning would require there to be no 
masts, pylons or other structures with a similar impact; and the right to health 
requires, according to the precautionary principle, avoiding any kind of 
electromagnetic emission that may be dangerous. 
12 In the abstract, the procedure under consideration, carefully reconstructed at 
national level in the case-law of the Constitutional Court on the sharing of 
competences between bodies, can be summarised as follows: given that the 
scientific data currently available do not clearly demonstrate that electromagnetic 
emissions are harmful to health and given that the precautionary principle in any 
case requires every caution to be taken with regard to harm that is hypothetically 
possible, it is necessary to define the limits beyond which, as a precaution, 
emissions are not lawful. Those limits mark the extent to which the right to health 
cannot be restricted. They therefore constitute an initial insurmountable restriction 
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on maximising the right to communication: emissions from antennae must always 
be lower than the precautionary limits imposed on the basis of the aforementioned 
scientific findings. However, given that the right to communication cannot be 
arbitrarily or unjustly constricted or limited, the authorities responsible for the 
proper governing of the territory must find solutions which, in each case, best 
allow minimal sacrifices to be made in that regard and, at the same time, ensure 
maximum protection of the right to communication. 
13 Consequently, according to the referring court, in that latter respect there is a need 
to find a balance. With this in mind, the interpretation by the national courts of the 
national law at issue, set out above, must be reviewed in order to ascertain its 
compatibility with the EU law currently in force.