Information;Order — ECLI:EU:C:2020:21
Date: 2020-01-16
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-368/19 — 1 
Case C-368/19 
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: 
6 May 2019 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
14 March 2019 
Appellants: 
Telecom Italia SpA 
Wind Tre SpA 
Vodafone Italia SpA 
Lindam Srl 
Respondents: 
Roma Capitale 
Regione Lazio 
Vodafone Italia SpA 
Telecom Italia SpA 
Wind Tre SpA 
Wind Telecomunicazioni SpA 
  
Subject matter of the main proceedings 
Regulation of a local authority governing the siting, installation and modification 
of mobile telephone apparatus within the territory of that local authority — 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
2  
Individual administrative acts, based on that regulation, which restrict the 
installation of antennae and other 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 sensitive sites or to 
require the apparatus at issue to be a certain distance from those sensitive sites — 
Compatibility of that national legislation with EU law 
Subject matter and legal basis of the reference 
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? 
Relevant provisions of Community law 
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 
Relevant provisions of national law 
Regulation governing (i) the siting, installation and modification of mobile 
telephone apparatus, in accordance with Article 8(6) of Law No 36 of 22 February 
2001, (ii) the drafting of the Plan, in accordance with Article 105(4) of the NTAs 
(Norme Tecniche di Attuazione (implementing technical standards)) of the PRG 
(Piano Regolatore Generale (general town planning scheme)) currently in force, 
and (iii) the adoption of a monitoring system for sources of electric, magnetic and 
electromagnetic fields (Regolamento comunale sugli impianti di telefonia mobile 
TELECOM ITALIA AND OTHERS 
 
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(Municipal Regulation on mobile telephone apparatus)), adopted by delibera n. 26 
dell’ Assemblea Capitolina di Roma Capitale (Resolution No 26 of the Rome City 
Council) of 14 May 2015, in particular Articles 3, 4, 5, 7, 10 and 11 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(1)(a) and 
(6) thereof 
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) and 87(1), (3) and (9) thereof 
Succinct presentation of the facts and the main proceedings 
1 A number of undertakings which are licensees of the public fixed and mobile 
telephone service in the national territory brought various actions before the 
Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, 
Lazio, Italy) (‘the TAR’) seeking the annulment of certain provisions of the 
Municipal Regulation on mobile telephone apparatus, the annulment of further 
prior and/or connected acts, as well as the annulment of various individual 
administrative acts on the application of the abovementioned regulatory 
provisions, which prevented those undertakings from installing antennae and other 
mobile telephone apparatus within the territory of the municipality. In support of 
their actions the applicant undertakings claimed that those acts are unlawful in 
several respects, as well as ultra vires. In particular they alleged infringement and 
misapplication of Articles 86, 87, 87 bis and 90 of the Electronic Communications 
Code and of Articles 4(1)(a) and 8(1)(a) and (6) of [Law No 36 of 22 February 
2001]. In addition to this the applicants complained that there had been a failure to 
observe the principle of legitimate expectations and the EU law principles of 
protection of competition, equal treatment and impartiality. Moreover, they 
claimed that, in practice, that regulation precludes planning activities for the 
development of the telecommunications network. 
2 The TAR dismissed all the actions brought by the applicant undertakings, which 
appealed those judgments before the Consiglio di Stato (Council of State, Italy) — 
the referring court — restating, in essence, arguments identical or similar to those 
put forward at first instance. 
3 The provisions at issue are the following provisions of the Municipal Regulation 
on mobile telephone apparatus: 
‘Article 3 — Criteria for the siting and design of apparatus 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
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Operators must take all appropriate measures to minimise the population’s 
exposure to electromagnetic fields and to mitigate the visual impact of apparatus, 
where technically possible. 
The areas of the territory defined as preferential for the installation of apparatus 
are: 
(a) as a priority, areas owned by the Rome Administration. The allocation to 
mobile telephone operators of areas, structures and land owned by the City 
of Rome shall be for consideration; 
(b) areas already served by a road system in order to avoid the creation of new 
infrastructure to serve the location; 
(c) areas forming part of [general town planning schemes] currently in force, 
such as: Ager Romanus, excluding the Ecological Network; Mobility 
infrastructure; Technology infrastructure; Urban fabric predominantly used 
for activities; Urban public services such as cemeteries, complementary 
mobility facilities, facilities for the collection of municipal solid waste; 
Public green spaces and local public services, excluding primary education, 
health and care facilities, old-persons’ care homes and children’s play areas; 
(d) areas, property or infrastructure owned by or in the possession of the (State, 
regional, provincial, and so on) Public Administrative Authorities or other 
public bodies, excluding the areas and sites referred to in Article 4 of the 
present Regulation. 
For each individual application from an operator, the Department of Heritage shall 
define the fees payable for the use of the buildings or structures owned by the City 
of Rome under a regular lease agreement. 
The siting of apparatus in other areas may be permitted only if all the above sites 
are unavailable, unsuitable or unable to ensure service coverage, and is subject to 
an obligation to respect the areas and sites referred to in Article 4 of the present 
Regulation. 
Preference shall also be given, if technically possible and compatible with the 
objectives of minimising the population’s exposure to electromagnetic fields, to: 
(a) installing apparatus on common support structures (site sharing), preferably 
in areas that are not densely populated and in a way that is compatible with 
service coverage needs; 
(b) installing mobile telephone apparatus on existing structures such as street 
lights, sign posts, lighting towers, water towers, and so on; 
(c) siting on property and/or areas owned by the municipality; 
TELECOM ITALIA AND OTHERS 
 
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(d) siting on buildings which are the highest of all adjacent buildings. 
Persons interested in installing and/or maintaining apparatus under the present 
Regulation must use the best and most practicable technology available at the time 
of the application, in order to minimise both the population’s exposure to 
electromagnetic fields and the visual impact. 
The principles of harmonisation and integration into the landscape shall apply. 
These shall be understood to encompass all measures capable of reducing the 
visual impact of the apparatus and the implementation of optimal architectural 
solutions. Such procedures shall also be taken into account in respect of existing 
apparatus, which may be restyled. A list of possible design criteria is provided 
below: ... 
Apparatus must be carefully maintained by operators both in order to ensure the 
efficacy of the protective measures adopted in order to reduce emissions from 
electromagnetic fields and for the purpose of mitigating the visual impact. 
 
Article 4 — Prohibition on installing apparatus 
Without prejudice to observance of the exposure limits, warning values and 
quality targets set by law, in compliance with the precautionary principle, all 
siting must seek to minimise human exposure to electromagnetic waves on 
sensitive sites. In particular, it shall be prohibited to install apparatus on or within 
100 metres, calculated from the edge of the outer perimeter of the radiating 
system, of sensitive sites such as hospitals, nursing homes, retirement homes, 
schools and crèches, oratories, orphanages and play parks, including any 
appurtenances. 
Existing mobile telephone apparatus installed on property referred to in the 
preceding paragraph shall be relocated in accordance with the aims set out in the 
present Regulation, subject to identification, authorisation and concurrent 
activation of another compatible site in order to ensure the efficient provision of 
service. 
It may be possible to derogate from the abovementioned prohibition on 
installation in respect of individual properties classified as sensitive sites which, 
because of the activities carried out there, require spot radio coverage. 
The installation of apparatus on unlawfully constructed buildings which have not 
obtained a regulatory building permit shall not be permitted. 
 
Article 5 — Measures for the protection of the environment and landscape 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
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On the sites (the ‘Natura 2000’ network) referred to in the Habitats Directive 
(Directive 92/43/EEC), and in Protected Natural Areas (Legge n. 394/1991 (Law 
No 394/1991) and legge regionale del Lazio n. 29/1997 (Lazio Regional Law 
No 29/1997)), the installation and modification of apparatus shall be subject to 
obtaining the approval of the competent bodies. 
In areas subject to landscape restrictions within the meaning of Articles 136 and 
142 of [decreto legislativo] n. 42/2004 Codice dei Beni Culturali e del Paesaggio 
(Legislative Decree No 42/2004 (Code of Cultural Heritage and Landscape)), the 
installation and modification of apparatus shall be subject to obtaining the 
approval of the competent bodies. 
On cultural property within the meaning of Article 10 of Legislative Decree 
No 42/2004 (Code of Cultural Heritage and Landscape)), the installation and 
modification of apparatus shall be subject to obtaining the approval of the 
competent bodies. 
The installation of the apparatus must comply with the rules established by higher-
ranking plans (Landscape Plan, Regional Landscape Plan, Basin Plan, and so on). 
The installation of new apparatus shall not be permitted in areas of the Ager 
Romanus that are part of the Ecological Network, according to the [technical 
implementing standards] of the [general town planning scheme] currently in force, 
unless the Operator expressly states and/or demonstrates that, as a result of that 
prohibition, it is impossible to achieve a complete communications network. 
...  
In areas of historical, monumental, architectural, scenic or environmental interest, 
the installation of apparatus, where permitted and subject to prior authorisation by 
the competent bodies, must involve the use of technical and design solutions to 
mitigate the visual impact. 
Within the meaning of Article 10(10) of the [technical implementing standards] of 
the [general town planning scheme] currently in force, plans for mobile telephone 
[radio base stations] which come within the Services, Infrastructure and 
Installations System referred to in Title IV must be accompanied by a 
‘Preliminary Environmental Assessment’ (Valutazione Ambientale Preliminare — 
V.A.P.) 
In connection with the Preliminary Environmental Assessment, plans must 
provide for Environmental Impact Mitigation (Mitigazione di Impatto 
Ambientale — M.I.A.) measures; in the alternative, operators must propose 
suitable environmental measures to be implemented in the immediate environment 
or in the relevant area. In the event that this is impossible, operators may ask to 
make a substitute payment commensurate with the scale of the intervention and 
the environmental value of the site, which shall permit the Rome Administration, 
TELECOM ITALIA AND OTHERS 
 
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after consulting the competent Municipal Council, to implement environmental 
measures in the corresponding urban environment. 
The Offices of the Department for Environmental Protection — Civil Protection 
and of the Department for Urban Planning and Development shall have the task of 
preparing, with the support of the Secretary General, a proposal for a resolution of 
the Rome City Council establishing the implementation criteria identified in 
Article 5 of the Regulation, which shall form an integral part of this resolution. 
Under Article 10(13) of the [technical implementing standards] of the [general 
town planning scheme] currently in force, in the event of interference or overlap 
with provisions of higher-ranking legislation, only those higher-ranking 
provisions shall apply and thus no V.A.P. shall be required. 
 
Article 7 — Restoration and environmental protection measures 
The City of Rome shall promote measures for the restoration of apparatus within 
the meaning of Law No 36/2001 and of Legislative Decree No 259/2003 as 
amended and supplemented in accordance with [decreto ministeriale n. 381/1998 
(Ministerial Decree No 381/1998)]. 
Reduction to conformity is a process which must be implemented every time the 
exposure limits or warning values are exceeded or the quality targets provided for 
in Articles 3 and 4 of the [decreto del presidente del consiglio dei ministri (Decree 
of the President of the Council of Ministers)] of 8 July 2003 and under legge n. 
221/2012 (Law No 221/2012) are not met by a single source or by the 
combination of two or more sources. In view of the specific monumental, 
archaeological, architectural, scenic and environmental context of sites in the 
Historic Centre and in particular those in the UNESCO World Heritage Historic 
Centre, the restoration and upgrading measures referred to in Article 2(d) of the 
present Regulation must include the removal, within a period not exceeding two 
years, in the form and manner agreed with the operators, of apparatus currently 
located in sites that are incompatible with the existing constraints and the 
relocation of that apparatus to areas and/or sites which conform to the Plan. 
That process shall involve reducing the value of the overall electromagnetic field 
until it is once again below the exceeded threshold and therefore below the 
exposure limits and warning values and in line with the quality targets provided 
for in Articles 3 and 4 of the [Decree of the President of the Council of Ministers] 
of 8 July 2003 and under Law No 221/2012. 
All measures for the restoration of apparatus shall be implemented by and at the 
expense of the owners of those apparatus. 
 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
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Article 10 — Entry into force and transitional rules 
...  
[(3)] The entry into force of this Regulation shall entail the lapse of any previous 
act, regulation or part thereof concerning the same subject matter which conflicts 
with the present Regulation. 
 
Article 11 — Authorisation procedure 
11.1 — Telephone apparatus — Radio Base Stations 
The installation and modification of the emission characteristics of radio 
apparatus, in particular the installation of towers, pylons, radio transmitting 
apparatus, electronic communications service repeaters, radio base stations for 
GSM/UMTS/LTE mobile electronic communications networks, or subsequent 
comparable technology, shall be authorised by the City of Rome. 
The installation and modification of mobile telephone apparatus shall be subject to 
authorisation under Articles 86, 87, 87 bis and 87 ter of Legislative Decree 
No 259/2003 and [subsequent amendments and additions thereto]. 
...’. 
4 The provisions of national legislation laid down in Law No 36/2001 and relevant 
to the present case are: 
‘Article 4 — Functions of the State 
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 
1. The following shall be within the remit of the regions, subject to observance 
of the exposure limits, warning values and quality targets as well as the criteria 
and modalities established by the State, without prejudice to the competences of 
the State or of independent authorities: 
(a) the performance of tasks relating to the identification of transmission sites 
and sites for mobile telephone apparatus, radio apparatus and broadcasting 
TELECOM ITALIA AND OTHERS 
 
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apparatus, within the meaning of legge 31 luglio 1997, n. 249 (Law No 249 
of 31 July 1997), subject to compliance with the decree referred to in 
Article 4(2)(a) and observance of the principles established by the regulation 
referred to in Article 5; 
...  
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’. 
5 The referring court notes that the rules at issue have been understood in the 
prevailing case-law, including recent case-law, as meaning that all municipalities 
and regions 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). 
6 Also of importance as regards this subject are the rules laid down in the Electronic 
Communications Code. It has been established by case-law that that legislation is 
applicable in this domain as well as being a source of particular favour for the 
establishment of electronic communications networks and services for public use. 
The relevant provisions of the Electronic Communications Code are as follows: 
‘Article 86 — Electronic communications infrastructure and rights of way 
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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
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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 
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 90 — Expropriation in the public interest 
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 reasons for the reference 
7 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 opinion, 
Directive 2002/21 (the Framework Directive), Directive 2002/22 (the Universal 
Service Directive) and Directive 2002/20 (the Authorisation Directive) are at 
issue, particularly the following provisions: 
The 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 
TELECOM ITALIA AND OTHERS 
 
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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; 
...  
(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: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
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(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; 
TELECOM ITALIA AND OTHERS 
 
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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 
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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....’ 
‘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 ...  
...’ 
8 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. 
9 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). 
10 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 
TELECOM ITALIA AND OTHERS 
 
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bis of the Electronic Communications Code — through 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 in the event that the request satisfies all the conditions 
that the law stipulates must be satisfied in order for that request to be accepted. In 
the disputes which have arisen as a result of the regulations of the Municipality of 
Rome, 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 the referring court, those guidelines 
appear to conflict with the procedural simplification objectives and the regulatory 
favour referred to above. 
11 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. 
12 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. 
13 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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-368/19 
 
16  
requires, according to the precautionary principle, avoiding any kind of 
electromagnetic emission that may be dangerous. 
14 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 does 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 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. 
15 Therefore, 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.