Judgment;Summary — ECLI:EU:C:2020:148
Date: 2020-03-04
Language of the case: Italian
Court formation: First Chamber
Subject matter: Right of establishment;Freedom to provide services;Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-34/19 — 1 
Case C-34/19 
Request for a preliminary ruling 
Date lodged:  
17 January 2019 
Referring court:  
Tribunale Amministrativo Regionale per il Lazio (Italy) 
Date of the decision to refer:  
11 December 2018 
Applicant:  
Telecom Italia SpA 
Defendants:  
Ministero dello Sviluppo Economico 
Ministero dell’Economia e delle Finanze 
  
…   
THE ITALIAN REPUBLIC  
The Tribunale Amministrativo Regionale per il Lazio 
(Second Chamber) 
has made the following 
ORDER 
in the proceedings … brought by the company Telecom Italia SpA, … 
against 
the Ministero dello Sviluppo Economico and the Ministero dell’Economia e delle 
Finanze, … 
for the annulment 
EN 
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of the notice issued by the Ministero delle Comunicazioni (Ministry of 
Communications) … on 9 July 2003, received on 17 July 2003, requiring the 
applicant company to pay the sum of EUR 31 118 630.05, representing the 
outstanding balance of the concession fee for the 1997 financial year, and the sum 
of EUR 41 025 043.06, representing the outstanding balance of the concession fee 
for the 1998 financial year; …[Or. 2] 
and for a declaration that it is not liable to pay anything by way of concession fee 
for the 1998 financial year, upon the disapplication, in so far as may be necessary, 
of Article 20(2) of Law No 448/1998, on the ground that it is inconsistent with 
Articles 6 and 11 of Directive 97/13/EC, of the Ministerial Decree of 21 March 
2000 laying down procedures for the payment of the contribution introduced by 
Article 20(2) of Law No 448/1998, and of Article 21(2) of Presidential Decree 
No 318/1997, in so far as it provides that ‘the provisions referred to in Article 188 
of the Postal Code shall continue to apply, for the purposes referred to in 
Article 6(20) and (21) and pending any decision to the contrary by the [national 
regulatory] authority’, on the ground that it is inconsistent with Articles 6 and 11 
of Directive 97/13/EC. 
… 
… [signatures] 
THE FACTS AND INTERIM JUDGMENT NO 8753/2018 OF THE 
REFERRING COURT  
1. The company Telecom Italia has challenged and requested the annulment of 
the abovementioned notice, by which the Ministry of Communications (now the 
Ministero dello Sviluppo Economico (the Ministry of Economic Development)) 
required it, as holder of the exclusive licence to provide public 
telecommunications services, pursuant to Article 188 of Presidential Decree 
No 156/1973 (‘the Postal Code’), to pay the sums set out [Or. 3] therein, 
representing the outstanding balances of the concession fees for the 1997 and 
1998 financial years. 
2. Both the Ministry of Communications (now the Ministry of Economic 
Development) and the Ministero dell’Economia e delle Finanze (Ministry of the 
Economy and Finance) have entered an appearance. … 
3. … 
4. … [procedural matters] 
5. … The applicant disputes, as a matter of principle, that it is liable for any 
such outstanding balances. It argues that, since the process of liberalising the 
telecommunications sector was completed on 31 December 1997, no sums were 
any longer payable after that date, as a result of the withdrawal of all special and 
TELECOM ITALIA 
 
3 
exclusive rights from the incumbent operators and the corresponding cancellation 
of any pecuniary obligations upon them. 
5.1. In the applicant’s submission … the question of whether it owes any 
outstanding balance must be regarded as having already been settled by the [Or. 
4] judgment of the Court of Justice of the European Union in Joined Cases 
C-292/01 and C-293/01 (Albacom and Infostrada) and by its more recent 
judgment, of 21 February 2008 in Case C-296/06, which was delivered (upon a 
request for a preliminary ruling made by the present referring court … in the 
context of proceedings in which the present applicant sought a declaration that it 
did not owe a concession fee for the 1998 financial year and a consequential order 
requiring the sums which it had paid unduly to be reimbursed. 
The applicant explains that, in that latter judgment, the Court of Justice, which had 
been asked to rule on the interpretation of Articles 6, 11, 22 and 25 of Directive 
97/13/EC of the European Parliament and of the Council of 10 April 1997 on a 
common framework for general authorisations and individual licences in the field 
of telecommunications services, held that those provisions ‘preclude a Member 
State from requiring an operator, formerly the holder of an exclusive right to 
provide public telecommunications services and then the holder of a general 
authorisation, to pay a pecuniary charge such as the charge in the main 
proceedings, corresponding to the amount previously demanded for that exclusive 
right, for one year from the final date laid down for transposition of that directive 
into national law, [that is to say, up to] 31 December 1998’. 
In particular, the Court based its reasoning on Articles 6 and 11 of the directive 
and pointed out that those provisions ‘had to be implemented, like all provisions of 
that directive, not later than 31 December 1997’. Thus, on considering the scope 
of Article 22 of the directive, which contains derogating provisions applicable to 
authorisations already in existence on the date of entry into force of the directive, 
the Court made it clear that those derogating provisions did not deal ‘explicitly 
with the charges applicable to telecommunications undertakings which are 
holders of authorisations, be they general authorisations or individual licences’, 
and that Articles 6 and 11 alone ‘expressly address[ed] that issue’. 
[Or. 5] 
The court had then gone on to clarify that the purpose of Article 22 was to ‘avoid 
litigation’ between Member States and telecommunications undertakings and that 
therefore it in no way related to any ‘charge connected with a former exclusive 
right’. The Court also stated that, ‘assuming that a charge such as the charge at 
issue in the main proceedings [was] not linked to an exclusive right granted 
before the entry into force of Directive 97/13’, it would still be necessary to check 
‘whether such a charge constitute[d] an obligation within the meaning of 
Article 22(3) of that directive, eligible for the derogation laid down in that 
provision’. In that regard, again referring to Articles 6 and 11, the Court then held 
that the concept of ‘conditions attached to authorisations’, within the meaning of 
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Article 22(2) of the directive, included ‘obligations’ within the meaning of 
Article 22(3) that covered ‘different rights and obligations without, however, 
covering charges imposed on telecommunications undertakings which hold 
authorisations’. 
In short, according to the applicant, the Court reached the conclusion that the 
word ‘obligations’, used in Article 22(3) of the directive, did not cover a 
pecuniary charge, such as the charge at issue in that case, that had been imposed 
on a telecommunications undertaking without any link to the conditions of 
exercise of the authorisation granted to it and for the sole purpose of assisting 
financially the Member State concerned. 
5.2. The applicant goes on to observe that, notwithstanding the clear ruling of the 
Court of Justice, the present court delivered Judgment No 11386 on 15 December 
2008, holding that the charge for 1998 was also due. It states that, in the appeal 
brought against that judgment, the Consiglio di Stato (Council of State, Italy) 
ruled, by Judgment No 7506 of 1 December 2009, that the concession fee for 1998 
was not linked to special and/or exclusive rights. However, it also concluded that 
national law had ‘linked the obligation to pay the charge for 1998 to the 
continuation during that year of the concession and of the obligations deriving 
from the instrument granting the concession’. It stated that ‘the reason for 
maintaining the charge for 1998 [was] to be found in the continuation during that 
year of [Or. 5] the special concession relationship, in the context of which the 
charge represented the consideration for the right to provide services that would 
otherwise have remained with the State’. In substance, the Council of State took 
the view that payment of the charge for 1998 was consistent with European Union 
law, doing so on the very basis of the judgment of the Court of Justice of 
21 February 2008, and that it was ‘therefore unnecessary to make a further 
request for a preliminary ruling’. 
However, according to the applicant, the Council of State not only failed to take 
account of the fact that European Union law precluded the maintenance of the 
concession fee for 1998, in that it was linked to special and/or exclusive rights, but 
also disregarded the fact that, ‘leaving aside any link between the charge and 
special and/or exclusive rights, maintaining the obligation to pay a charge for 
1998 based on turnover and unconnected with administrative and supervisory 
costs must in any event be deemed inconsistent with supranational law, since only 
supranational law (Articles 6 and 11 of the directive) was capable of governing 
what pecuniary obligations could be imposed after the entry into force of the 
directive’. 
5.3. The applicant then states that, in view of those considerations, it issued civil 
proceedings against the Italian State, alleging its liability for incorrect exercise of 
the judicial function. The Corte d’Appello di Roma (the Court of Appeal, Rome, 
Italy) upheld that action, brought pursuant to Article 5(4) of Law No 117/1988, by 
decision of 31 January 2012, finding … that the Council of State had committed a 
serious and manifest infringement of European Union. 
TELECOM ITALIA 
 
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5.4. The applicant thus infers that Judgment No 7506 of 1 December 2009 of the 
Council of State was incorrect and that it should not be [Or. 7] followed by the 
present court, in observance of the principle of the primacy of European Union 
law (of which the Court’s judgment of 21 February 2008 forms part). The sum 
demanded by way of a concession fee for 1998 should therefore be deemed not 
due. In other words, the fact that the judgment of the national court on the claim 
for reimbursement of the charge already paid for 1998 cannot be appealed against 
should not stand in the way of the principles expressed by the Court of Justice. 
5.5. In the alternative, the applicant requests this court to declare national law, as 
interpreted by the Council of State in Judgment No 7506 of 1 December 2009, 
inconsistent with Directive 97/13/EC and to make a fresh request for a preliminary 
ruling of the Court of Justice. … [the question proposed by the applicant, which is 
similar to the question referred by the court] 
5.6. … The applicant also observes that the subject-matter of the present 
proceedings is different from that on which judgment has already been delivered, 
inasmuch as, in the earlier proceedings, the point in discussion was whether or not 
the concession fee for the 1998 financial year was due, whereas the present 
proceedings concern the outstanding balance for that year. The two claims are 
therefore different. 
… [Or. 8] … [applicant’s arguments in support of that view] 
5.7. … [Or. 9] … 
6. … 
7. … [procedural matters] 
THE GROUNDS FOR THE REQUEST FOR A PRELIMINARY RULING 
8. It falls to this court to examine the applicant company’s remaining claim, 
which is brought against the demand for payment of EUR 41 025 043.06, 
representing the outstanding balance of the concession fee for the 1998 financial 
year. 
9. With regard to that claim, this court considers that it must consult the Court 
of Justice of the European Union, by way of a request for a preliminary ruling, in 
order to clarify once and for all the scope of Directive 97/13/EC (which the Court 
already interpreted in its judgment of 21 February 2008) and, in particular, to 
clarify the consistency with European Union law of the national legislation, amply 
illustrated and interpreted by the Council of State in Judgment No 7506 of 2009 
(to which this court refers) on the basis of which payment of the said outstanding 
balance has been requested. 
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Indeed, in Judgment No 7506 of 2009, the Council of State gave a reading [Or. 
10] of Directive 97/13/EC which legitimises the request for payment of the 
outstanding balance. However, as will be explained, it is necessary that the Court 
of Justice should decide whether the interpretation of the EU legislation advocated 
by the Council of State is correct, in the light of the interpretation of that 
legislation given by the Court of Justice in its judgment of 21 February 2008, and 
also — in the event that the interpretation advocated by the Council of State 
should be found to be incorrect — that the Court of Justice should also decide 
whether or not it is possible to overturn the substantive res judicata (as referred to 
in Article 2909 of the Civil Code) established in Judgment No 7506 of 2009, 
which concerned the same substantive legal relationship.  
10. In its judgment of 18 September 2003 (in Joined Cases C-292/01 and 
C-293/01), the Court of Justice held that the provisions of Directive 97/13/EC, and 
in particular Article 11 of the directive, ‘prohibit Member States from imposing 
financial charges other than and in addition to those allowed by the directive, 
such as the contested charge in the main proceedings, on undertakings which hold 
individual licences in the telecommunications sector solely because they hold such 
licences’. 
That conclusion was confirmed by the Court of Justice in its judgment of 
21 February 2008 (in Case C-296/06), which it delivered in the context of 
different proceedings in which the present applicant sought a declaration that it 
did not owe the charge which it had paid for 1998. On that occasion too, the Court 
held that Articles 6, 11, 22 and 25 of Directive 97/13/EC ‘preclude a Member 
State from requiring an operator, formerly the holder of an exclusive right to 
provide public telecommunications services and then the holder of a general 
authorisation, to pay a pecuniary charge such as the charge in the main 
proceedings, corresponding to the amount previously demanded for that exclusive 
right, for one year from the final date laid down for transposition of that directive 
into national law, [that is to say, up to] 31 December 1999’. 
[Or. 11] 
Notwithstanding that, first this court, by Judgment No 11386 of 2008, and 
subsequently the Council of State, by Judgment No 7506 of 2009, confirmed that 
the request for payment of the charge for 1998 was legitimate. In particular, the 
appeal court, albeit ruling that the charge was not linked to special and/or 
exclusive rights, concluded that the reason for maintaining the charge for 1998, 
‘far from its being financial assistance in the liberalisation process’ (a possibility 
already ruled out by the Court of Justice in its judgment of 21 February 2008), 
was ‘to be found in the continuation during that year of the special concession 
relationship, in the context of which the charge represented the consideration for 
the right to provide services that would otherwise have remained with the State’. 
In short, it found the charge at issue consistent with European Union law, taking 
the view that, ‘after the sector was liberalised, Telecom continued to provide 
services throughout 1998 not because it was awarded any new authorisation on 
TELECOM ITALIA 
 
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the basis of a competitive, non-discriminatory procedure, but because the 
concession that it had been granted was kept in force and it was therefore 
authorised to provide, even in 1998, services which remained within the State’s 
gift, even if it no longer did so exclusively’. The interpretation of Article 22(3) of 
Directive 97/13/EC given by the Court of Justice in its judgment of 21 February 
2008 had, according to the appeal court, confirmed ‘the compatibility of an 
obligation, such as that at issue, relating to the payment of a charge for 1998, the 
basis for which is to be found in the terms of the authorisation [rectius 
concession], by way of consideration for the right to manage services which, 
albeit no longer exclusive, nevertheless remain within the gift of the State’. It was 
therefore not necessary to make a fresh request for a preliminary ruling. 
This court does, however, think it necessary once again to request a preliminary 
ruling of the Court of Justice, in order to establish whether the interpretation 
proposed by the Council of State is consistent with EU law, that court having 
essentially regarded [Or. 12] the charge for 1998 as consideration for Telecom’s 
provision of services in place of the State. Indeed, as the applicant has amply 
observed, there is reason to think that, in its judgment of 21 February 2008, the 
Court of Justice not only held that European Union law precluded the maintenance 
of the charge for 1998 because it was linked to special and/or exclusive rights, but 
also implied that maintaining in force in 1998 the obligation to pay the charge — 
based on turnover rather than on administrative and supervisory costs — was in 
any event inconsistent with European Union law because, pursuant to Articles 6 
and 11 of Directive 97/13/EC, only EU law was capable of governing what 
pecuniary obligations could be imposed after the entry into force of the directive. 
11. It must, however, be emphasised at this juncture that Judgment No 7506 of 
2009 [has become final] and the ruling on the lawfulness of the demand for 
payment of the concession fee for the 1998 financial year is without doubt 
relevant in the present proceedings, in that the applicant challenges the demand 
for payment of the outstanding balance of that charge and, therefore, the same 
substantive legal relationship as was at issue in the proceedings concluded by 
Judgment No 7506 of 2009 is again called into question, albeit in a separate claim. 
The present court is thus called upon to give judgment on the applicant’s claim for 
a declaration that it does not owe any outstanding balance the payment of which is 
demanded on the basis of the legal relationship on which Judgment No 7506 of 
2009 has already given a ruling. Nevertheless, there is no question that — as the 
applicant has pointed out — interpretative rulings of the Court of Justice 
(including its judgment of 21 February 2008) have the same binding force as the 
provisions interpreted therein and, accordingly, preliminary rulings of the Court of 
Justice are binding not only on the court which has referred the question for a 
preliminary ruling, but also in any other case which turns on the same provisions 
of EU law. … 
[Or. 13] 
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It follows that it is necessary that the Court of Justice should — if it finds that the 
ruling in Judgment No 7506 of 2009 disregarded or misconstrued its own 
judgment of 21 February 2008, and was thus delivered in breach of EU law — to 
establish whether that ruling may be disapplied by the present court. 
THE QUESTIONS FOR A PRELIMINARY RULING 
12. In the light of the foregoing considerations, the following questions must be 
referred to the Court of Justice for a preliminary ruling pursuant to Article 267 
TFEU: 
1. May Article 22(3) of Directive 97/13/EC be interpreted as permitting, 
including for 1998, the maintenance of an obligation to pay a fee or a charge 
corresponding (insofar as it is based on the same proportion of turnover) to that 
which had to be paid under the regime which existed prior to that directive? 
2. In light of the Court’s judgments of 18 September 2003 in Joined Cases 
C-292/01 and C-293/01 and of 21 February 2008 in Case C-296/06, does 
Directive 97/13/EC preclude a final national judgment given on the basis of an 
incorrect interpretation or misconstruction of that directive, with the result that the 
ruling in that judgment may be disapplied by a different court hearing a dispute 
which concerns the same substantive legal relationship but is different in that it 
concerns a demand for payment that is merely ancillary by comparison with that 
which was the subject of the case which led to the incorrect ruling? 
THE RELEVANCE OF THE QUESTIONS REFERRED FOR A 
PRELIMINARY RULING 
13. The questions set out above are relevant for the purposes of the ruling in the 
dispute which is before the present court, in that (a) the merits of the applicant’s 
claim depend on the correct interpretation of Directive 97/13/EC, and (b) a ruling 
has already been given on the legal relationship at issue in the present proceedings 
and, in accordance with the [Or. 14] substantive and procedural rules of national 
law, that ruling should have binding effect. 
ON THOSE GROUNDS 
The Tribunale Amministrativo Regionale per il Lazio (Sezione Seconda) (The 
Regional Administrative Court, Lazio (Second Chamber)) … refers to the Court 
of Justice of the European Union the questions for a preliminary ruling set out 
above and … stays the proceedings. 
… 
… 
RAPPORTEUR    PRESIDENT 
TELECOM ITALIA 
 
9 
…    … 
… (signatures) 
… 
Rome, 21 December 2018 … 
… 
[official wording]