Opinion of the Advocate General — ECLI:EU:C:2022:761
Date: 2022-10-06
Language of the case: Italian
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Internal market - Principles;Approximation of laws;Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C­339/21 – 1 
Case C­339/21 
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:  
31 May 2021 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
11 May 2021 
Appellants:  
Colt Technology Services SpA 
Wind Tre SpA 
Telecom Italia SpA 
Vodafone Italia SpA 
Respondents:  
Ministero della Giustizia 
Ministero dello Sviluppo Economico 
Ministero dell’Economia e delle Finanze 
Procura Generale della Repubblica (presso Corte d’appello di 
Reggio Calabria) 
Procura della Repubblica di Cagliari 
Procura della Repubblica (presso il Tribunale di Roma) 
Procura della Repubblica (presso il Tribunale di Locri) 
      
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­339/21 
 
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Subject matter of the main proceedings 
Appeal against the judgments of the Tribunale amministrativo regionale del Lazio 
(Lazio Regional Administrative Court; TAR) dismissing the present appellants’ 
actions against the decreto interministeriale del 28 dicembre 2017 (Interministerial 
Decree of 28 December 2017). That decree implemented Article 96 of decreto 
legislativo n. 259 del 2003 (‘Codice delle comunicazioni elettroniche’) 
(Legislative Decree No 259/2003; ‘the Electronic Communications Code’) and 
laid down the procedures and criteria applying for reimbursement to 
telecommunications operators for the performance of operations involving the 
interception of communication flows. 
Subject matter and legal basis of the reference 
This request for a preliminary ruling concerns the Italian legislation providing that 
the rate paid to telecommunications operators for the performance of interception 
activities, which are required to be performed on the basis of requests from the 
judicial authorities, may be quantified by the competent Ministries in a manner 
that does not correspond to the principle of full reimbursement of costs. That 
legislation could be at variance with the EU principles of non-discrimination, 
protection of competition, freedom of establishment, freedom to conduct business 
and proportionality of administrative action. The referring court has raised the 
question of a preliminary ruling under the third paragraph of Article 267 TFEU. 
Question referred for a preliminary ruling 
Do Articles 18, 26, 49, 54 and 55 TFEU, Articles 3 and 13 of Directive 
2018/1972/EU of the European Parliament and of the Council of 11 December 
2018, and Articles 16 and 52 of the Charter of Fundamental Rights of the 
European Union preclude a provision of national law that delegates to the 
administrative authorities the task of determining the remuneration to be paid to 
telecommunications operators for the mandatory performance of activities ordered 
by the judicial authorities consisting in the interception of communication flows, 
where that provision does not require compliance with the principle of the full 
reimbursement of the costs actually incurred and duly documented by the 
operators in relation to those activities and, furthermore, requires that the 
administrative authorities achieve cost savings compared to previous criteria for 
calculating remuneration? 
Provisions of EU law relied on 
- Articles 18, 26, 49, 54 and 55 TFEU. 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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- Articles 3 and 13 of Directive 2018/1972/EU of the European Parliament and of 
the Council of 11 December 2018 establishing the European Electronic 
Communications Code, and Annex I to that directive. 
- Articles 16 and 52 of the Charter of Fundamental Rights of the European Union. 
Provisions of national law relied on 
- The Interministerial Decree of 28 December 2017, issued by the Ministro della 
giustizia (Minister for Justice) and the Ministro dello sviluppo economico 
(Minister for Economic Development), in agreement with the Ministro 
dell’economia e delle finanze (Minister for Economic Affairs and Finance) – 
Disposizione di riordino delle spese per le prestazioni obbligatorie (Provisions for 
Restructuring of Costs for Mandatory Services), in accordance with Article 96 of 
Legislative Decree No 259/2003. 
- Article 28 of Legislative Decree No 259/2003 (‘Electronic Communications 
Code’; ‘the ECC’): 
‘Article 28 – Conditions attached to the general authorisation and to the rights of 
use for radio frequencies and rights of use for numbering resources. 
1. The general authorisation for the provision of electronic communications 
networks or services and the rights of use for radio frequencies and rights of use 
for numbering resources may be subject only to the conditions listed respectively 
in Parts A, B and C of Annex 1. Such conditions shall be non-discriminatory, 
proportionate and transparent and, in the case of rights of use for radio 
frequencies, must comply with Article 14 of the ECC. General authorisations are 
subject in all cases to Condition 11 stated in Part A of Annex 1.’ 
Annex 1 lays down ‘the maximum list of conditions which may be attached to 
general authorisations (Part A), rights of use for radio frequencies (Part B) and 
rights of use for numbering resources (Part C) as stated in Articles 28(1) and 33(1) 
of the ECC’. Part A of the Annex states the ‘conditions for general 
authorisations’, including Condition 11, namely ‘providing services for legal 
purposes, as laid down in Article 96 of the ECC, from the commencement of the 
activities’. 
- Article 96 of that Legislative Decree: 
‘Article 96 – Mandatory services 
1. Services for legal purposes performed on the basis of requests for interception 
and information made by the competent judicial authorities shall be mandatory for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­339/21 
 
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operators; the times and methods shall be agreed with those authorities until the 
decree described in paragraph 2 is approved.  
2. For the purposes of adopting the fixed annual charge for the mandatory services 
described in paragraph 1, a decree shall be issued before 31 December 2017 by 
the Minister for Justice and the Minister for Economic Development, in agreement 
with the Minister for Economic Affairs and Finance, to implement the revision of 
the items in the list laid down in the decreto del Ministro delle comunicazioni 26 
aprile 2001 (Decree of the Minister for Communications of 26 April 2001), 
published in the Gazzetta Ufficiale (Official Gazette) No 104 of 7 May 2001. The 
Decree:  
(a) shall lay down the types of mandatory services and shall determine the 
corresponding rates, taking into account changes in costs and services, so as to 
achieve a cost saving of at least 50% compared with the rates applied. The rate 
shall include the costs for all services simultaneously activated or used by each 
network identity;  
(b) shall identify the parties required to perform mandatory interception services, 
including among service providers, where their infrastructures permit network 
access or the distribution of information or communication content, and those that 
provide electronic communication services or applications on any basis, even if 
these are used through non-own access or transport networks;  
(c) shall establish the obligations of parties required to perform mandatory 
services and the procedures for performance of those services, including 
compliance with uniform IT procedures in the transmission and management of 
administrative communications, with regard also to the stages prior to the payment 
of those services.  
3. Non-compliance with the obligations laid down in the decree described in 
paragraph 2 shall result in the application of Article 32(2), (3), (4), (5) and (6).  
4. Until the decree described in paragraph 2 is issued, information relating to 
telephone traffic shall be released free of charge. Services provided for judicial 
purposes other than those listed in the first sentence shall continue to be subject to 
the list adopted by Decree of the Minister for Communications of 26 April 2001, 
published in the Official Gazette of the Italian Republic No 104 of 7 May 2001.  
5. For the purposes of enabling payment for the services covered by paragraph 2, 
the operators must negotiate interconnection arrangements among themselves to 
guarantee the supply and interoperability of the services. The Ministry may 
intervene if necessary at its own initiative or, if no agreement is reached among 
the operators, at the request of one of their number.’ 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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Outline of the facts and the main proceedings 
1 By separate legal actions, the telecommunications operators Colt Technology 
Services SpA, Wind Tre SpA, Telecom Italia SpA and Vodafone Italia SpA 
brought actions before the Tribunale amministrativo regionale del Lazio (Lazio 
Regional Administrative Court; ‘the Lazio TAR’) challenging the Interministerial 
Decree of 28 December 2017 issued by the Minister for Justice and the Minister 
for Economic Development, in agreement with the Minister for Economic Affairs 
and Finance, implementing Article 96 of the ECC and thus laying down the 
procedures and criteria applying for reimbursement to telecommunications 
operators for the performance of operations involving the interception of 
communication flows. 
2 Those telephone operators challenged that text on the basis that, in comparison 
with the previous regulatory provisions imposed on the basis of the Ministerial 
Decree of 26 April 2001, the amount of the reimbursement would be significantly 
reduced (in fact by 90%), to such a point that it would not even make it possible to 
cover the costs for the performance of the interception activities. Vodafone Italia 
SpA also requested that the matter be referred for a preliminary ruling to the Court 
of Justice of the European Union. 
3 The Lazio TAR rejected all the criticisms raised by the appellant companies, 
taking the view that it had not been established that the rates set by the decree 
were not sufficient to reimburse the costs incurred by the operators in the 
performance of the interception activities. For that reason, that court refused to 
accept that the conditions for referral to the Court of Justice of the European 
Union had been met. 
4 The abovementioned telecommunications operators appealed to the Consiglio di 
Stato (Council of State, Italy), reiterating the challenges and applications already 
made in the proceedings at first instance. 
5 On 23 March 2020 the Council of State delivered a judgment raising a question 
for a preliminary ruling in fulfilment of the duty laid down in the third paragraph 
of Article 267 TFEU, submitting to the Court of Justice the elements of a possible 
conflict between EU law and the Italian legislation cited by Vodafone Italia SpA. 
6 In an order of 26 November 2020, the Court of Justice held that the request for a 
preliminary ruling was ‘manifestly inadmissible’, expressly reserving the Council 
of State’s right to ‘submit a new request for a preliminary ruling containing the 
information that will enable the Court to provide an effective response to the 
question raised’. 
7 The proceedings having resumed, the appellant companies have made a further 
request for a preliminary ruling to the Court of Justice. 
8 The Council of State once again has raised the question of a preliminary ruling 
under the third paragraph of Article 267 TFEU. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­339/21 
 
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Principal arguments of the parties to the main proceedings 
9 The appellants submit that Article 96 of Legislative Decree No 259/2003, in so far 
as it provides that the rate payable to telecommunications operators for the 
performance of mandatory interception activities may be quantified by the 
competent ministries in a manner that is not based on the principle of full 
reimbursement of costs, is at variance with EU law, in that: 
- it makes it mandatory for telecommunications operators to perform interception 
activities ordered by the judicial authorities, with any failure to perform those 
activities subject to heavy administrative penalties, and potentially even the 
withdrawal of authorisations; 
- it requires that the rates to be paid to the operators for the performance of 
interception activities be set administratively so as to ‘achieve a cost saving of at 
least 50% compared with the rates’ applied until now. This not only fails to allow 
operators to make any profit but even prevents them from covering the related 
costs, given that the performance of the services in question would require 
specific investments and the deployment of otherwise unnecessary personnel. 
10 This would represent: 
(a) discrimination on the grounds of size, as smaller companies would be 
proportionally less penalised than larger operators, such as the appellants; 
(b) discrimination on the grounds of nationality, because companies not 
established in Italy would be favoured over operators established in Italy, such as 
the appellants; 
(c) a distortion of competition with repercussions across the continent, given that 
the establishment of foreign companies in the Italian market and, more generally, 
entry into that market by new entrants would be made structurally less convenient, 
because of the uneconomic nature of the interception activities resulting from the 
Italian legislation in question; 
(d) a substantive expropriation of the entrepreneurial capacities of private 
economic operators completely disproportionate to the public interest objective to 
be achieved. 
11 Essentially, according to the appellants, the intrinsic uneconomical nature of the 
performance of interception activities based on the contested Italian legislation: 
(a) would weigh more than proportionately on larger operators, which, precisely 
because of the broader user bases they have under contract, would be more likely 
to receive interception requests from the judicial authorities, with the consequent 
impact of the uneconomic nature of those activities being exponential; 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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(b) would more than proportionally burden operators established in Italy, because 
foreign operators able to apply tariff reductions for roaming could offer cheaper 
services to Italian customers who buy foreign SIM cards. Specifically, these 
operators could: 
(b1) either limit the overall uneconomic impact of interception activities, because 
of the turnover achieved with customers in the countries where they are 
established; 
(b2) or even exclude it altogether, in cases where SIM cards can be purchased in 
the country of establishment without prior verification of personal identity. In 
such cases, the Italian judicial authorities would not be able to link the SIM to a 
specific name and would thus find it practically impossible to order interceptions; 
(c) would introduce an undue structural difficulty of access to the Italian market 
for foreign operators interested in establishing themselves there and, more 
generally, for those wishing to enter the market from scratch; at the same time, it 
would lead ‘downstream’ to a likely increase in the tariffs applied to end 
customers (since operators would need to recoup the costs incurred in carrying out 
interception services at a loss); 
(d) would place the cost of providing a service of public interest almost entirely on 
private entities operating on a profit-making basis in a competitive market, in 
breach of the right to freely exercise an economic activity, a fundamental right 
within the EU. 
12 Conversely, according to the appellants, the only pricing method compatible with 
EU law would be one providing for full coverage of costs actually incurred by 
telecommunications operators in relation to the interception activities carried out 
at the behest of the judicial authorities.  
13 For their part, the respondent institutions submit that the claims made by the 
appellants are unfounded, because the following would not be reimbursable: 
- costs associated with the use of technical equipment and the adoption of 
operating methods that are no longer justifiable in technological terms; 
- costs arising from the use of equipment that is already needed to provide normal 
commercial services to users (such as distribution infrastructure); 
- costs of presenting those costs in the financial statements, as these would be the 
company’s own operating expenses and not cost items strictly related to the 
service. 
14 In terms of personnel costs, reimbursable costs would only include those that 
could be identified on a flat-rate basis in the light of the number of days of 
interceptions carried out over the year and the mean duration of the individual 
interception operations.  
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15 Essentially, the 50% cost-saving objective compared to the previous situation, 
imposed by law, would therefore be achieved mainly through technological 
changes. Moreover, the costs calculated by extrapolation by the special working 
group set up at the Ministry of Justice ‘taking into account changes’ in current 
technology have been subject to ‘reductions’ in order to achieve the minimum 
level of cost savings required by the national lawmakers (‘50% compared with the 
rates applied’ previously). 
Succinct presentation of the reasons for the request for a preliminary ruling 
16 The referring court notes that, according to secondary EU legislation (Article 13 
of Directive 2018/1972/EU of the European Parliament and of the Council of 
11 December 2018 and Annex I to that directive), a general authorisation to 
provide communications services may be subject under national law to a 
requirement to perform interceptions ordered by the judicial authorities. 
17 Such authorisations are subject only to the restriction stated generally in Article 13 
for all conditions, namely that they must be ‘non-discriminatory, proportionate 
and transparent’. 
18 The secondary EU law applicable in such cases does not therefore expressly 
require that the national law provide for the full reimbursement of the costs 
incurred by the telecommunications operator in relation to the performance of 
interceptions ordered by the judicial authorities. 
19 The appellants submit that the requirement under EU law for costs to be covered 
in full – namely all costs specifically incurred by telecommunications operators 
for the performance of the interception activities – should be implicitly but 
unambiguously inferred from the following: 
- consideration of the ‘general objectives’ sought by Directive 2018/1972/EU, 
primarily ‘promoting competition’, ‘contributing to the development of the 
internal market’, ‘facilitating convergent conditions for investment’, and 
‘ensuring … there is no discrimination’ (see Article 3); 
- a systematic reading of the original EU legislation and, more specifically, the 
integrated, reciprocal consideration of the general principles of non-
discrimination, protection of competition, freedom of establishment, freedom to 
conduct business and proportionality of administrative action enshrined in the 
Treaties. 
20 The referring court asserts that neither the secondary EU legislation applicable in 
the case nor the general principles laid down in the Treaties cited by the appellants 
require the full reimbursement of the costs actually incurred (and duly 
documented) by operators in performing the interception activities and, therefore, 
do not preclude national provisions that fail to include such full reimbursement 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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and, furthermore, require an administrative review of the rates to be paid to the 
operators in order to achieve ‘a cost saving’. 
21 It held that: 
(a) first, Directive 2018/1972/EU does not expressly require Member States to 
make full reimbursement of costs to operators, and it can therefore be inferred that 
the implicit intention was to leave discretion to the Member States in this respect; 
(b) furthermore, that directive permits Member States to require that 
telecommunications operators perform interception activities legally ordered by 
the judicial authorities: because those activities are imposed by law for primary, 
overriding and indispensable public interest purposes, they may not be subject to 
financial constraints except to a limited extent, all the more so if such constraints 
are laid down for the benefit of private entities operating, subject to administrative 
authorisation, in regulated markets; 
(c) more generally, it is true that, according to secondary EU law, the conditions 
that may be imposed on general authorisations to provide telecommunications 
services, including the obligation to carry out interception activities, must be ‘non-
discriminatory, proportionate and transparent’, but it is equally true that the rates 
generally laid down by Legislative Decree No 259/2003 for the performance of 
interception activities: 
(c1) are absolutely the same for all operators – large and small, domestic and 
foreign – offering services in Italy, so there is no technical or legal limitation on 
free competition and market entry, much less any direct or indirect discrimination 
on grounds of company size or nationality (the rates are therefore ‘non-
discriminatory’); 
(c2) must be calculated by the authorities ‘taking into account changes in costs’; 
on the other hand, these services, which are essential in achieving general 
purposes of primary public interest, may only be provided by telecommunications 
operators (the rates are therefore generally ‘proportionate’); 
(c3) are public and accessible to everyone, because they are laid down in a formal 
administrative measure (the rates are therefore ‘transparent’); 
(d) in legal terms, the cost reimbursed is not necessarily and solely based on the 
actual costs effectively incurred, but also on the hypothetical costs borne by a 
model operator adopting the best technological and organisational solutions 
available on the basis of the knowledge at the time; moreover, based on the 
applicable EU and Italian legislation, a telecommunications operator is required to 
consent to performing interceptions, and therefore has – in legal terms – on the 
one hand an obligation (in the public interest) to put in place an organisational 
structure that makes it possible for these activities to be carried out as smoothly, 
effectively and efficiently as possible, and on the other hand a duty (in its own 
interest) to reduce the corresponding costs as much as possible; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­339/21 
 
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(e) lastly, from a systematic value-based point of view, the original EU law (see 
Article 4(2) TEU, Article 4(2)(j) TFEU, Article 72 TFEU, Article 82 TFEU and 
Article 84 TFEU) recognises, directly or indirectly, the structural primacy of 
certain essential public interests of the Member States, including the prosecution 
of criminal offences, for which it is valuable and, often, essential to capture 
conversations: however, because such conversations can only be captured with the 
cooperation of telecommunications operators, the Member State need only 
provide a set of rules that is clear, uniform for all operators active within the 
domestic market and reasonably capable of making the performance of this 
activity economically viable.