Opinion of the Advocate General — ECLI:EU:C:2025:216
Date: 2025-03-27
Language of the case: Italian
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-764/23 – 1 
Case C-764/23 
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: 
12 December 2023 
Referring court: 
Consiglio di Stato (Italy) 
Date of the decision to refer: 
1 December 2023 
Appellant: 
Cairo Network Srl 
Respondents: 
Ministero delle Imprese e del Made in Italy 
Autorità per le Garanzie nelle Comunicazioni 
  
Subject matter of the main proceedings 
Appeal brought against two judgments of the Tribunale amministrativo regionale 
per il Lazio (Regional Administrative Court, Lazio, Italy), which dismissed 
several appeals brought by Cairo Network Srl against decisions relating to the 
national frequency allocation plan for the digital terrestrial television service and 
other measures defining the characteristics of that service. 
Subject matter and legal basis of the request 
Pursuant to Article 267 TFEU, interpretation is sought of the following: Articles 6 
and 19 TEU; Article 47 of the Charter of Fundamental Rights of the European 
Union (‘the Charter’); Articles 3, 5, 7 and 14 of Directive 2002/20/EC; Articles 3, 
4, 8 and 9 of Directive 2002/21/EC; Articles 2 and 4 of Directive 2002/77/EC; 
Articles 5, 6, 8, 9, 31 and 45 of Directive (EU) 2018/1972; and recitals 11 and 20 
of Decision (EU) 2017/899. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-764/23 
 
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Questions referred for a preliminary ruling 
1. Must EU law, and in particular Article 6 and the second part of Article 19(1) 
TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights of 
the European Union, the first subparagraph of Article 4(1) of 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), and Article 31 of Directive (EU) 2018/1972, be 
interpreted as precluding national legislation, such as that laid down in Italian law 
(Article 1(1037) of Legge n. 205/2017 (Law No 205/2017)), which, in a situation 
of EU-wide relevance, limits the effects of actions for annulment, by preventing 
restitution or specific performance, and confines interim relief to the payment of a 
provisional amount, thereby undermining effective judicial protection? 
2. Must EU law and, in particular, Articles 3(3) and (3a), and 8 and 9 of 
Directive 2002/21/EC (‘the Framework Directive’), as amended by Directive 
2009/140/EC, and Articles 5, 6, 8, 9 and 45 of Directive (EU) 2018/1972, be 
interpreted as precluding a system of the kind introduced in the Italian Republic 
by Article 1(1031a) of the Legge di Bilancio 2018 (2018 Budget Law), as 
introduced by Article 1(1105) of the Legge di Bilancio 2019 (2019 Budget Law), 
which deprives the independent administrative authority of its regulatory 
functions, or at least significantly limits them, by providing for the award of 
additional transmission capacity by means of a fee-based procedure, with that 
award being granted to the highest offer and with the participation of the 
incumbents? 
3. Must EU law, and in particular Articles 8 and 9 of 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), Articles 3, 5, 7 and 14 of Directive 2002/20/EC of the 
European Parliament and of the Council of 7 March [2002] on the authorisation of 
electronic communications networks and services (Authorisation Directive), 
Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on 
competition in the markets for electronic communications networks and services, 
recitals 11 and 20 of Decision (EU) 2017/899 and the principles of fairness, non-
discrimination, protection of competition and legitimate expectations, be 
interpreted as precluding a system such as that introduced by the relevant national 
legislation (Article 1(1030), (1031), (1031a), (1031b) and (1032) of Legge n. 
205/2017 (Law No 205/2017)), as well as Decisions Nos 39/19/CONS, 
128/19/CONS and 564/2020/CONS of the Autorità per le Garanzie nelle 
Comunicazioni (Regulatory Authority for Communications) and related measures 
for assigning rights of use of frequencies for the digital television service, which 
for the purpose of converting ‘rights of use of frequencies’ into ‘rights of use of 
transmission capacity’ does not require an equivalence-based conversion, but 
reserves part of that capacity for a fee-based award procedure, by imposing 
additional costs on the operator so it ensures it retains rights that have been 
lawfully acquired over time? 
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4. Does EU law and, in particular, Articles 8 and 9 of 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), Articles 3, 5, 7 and 14 of Directive 2002/20/EC of the 
European Parliament and of the Council of 7 March [2002] on the authorisation of 
electronic communications networks and services (Authorisation Directive), 
Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on 
competition in the markets for electronic communications networks and services, 
recitals 11 and 20 of Decision (EU) 2017/899, the principles of fairness, non-
discrimination, protection of competition and legitimate expectations, as well as 
the principles of proportionality and appropriateness, preclude [a system] such as 
that introduced by the relevant national legislation (Article 1(1030), (1031), 
(1031a), (1031b) and (1032) of Law No 205/2017), as well as Decisions Nos 
39/19/CONS, 128/19/CONS and 564/2020/CONS of the Regulatory Authority for 
Communications and related measures assigning rights of use of frequencies for 
the digital television service, which does not adopt measures of a structural nature 
in order to remedy the situation of inequality established previously, particularly 
in view of the irregularities previously found to exist in national and supranational 
case-law, and does not distinguish the position of an operator that has acquired a 
frequency following a fee-based competitive procedure with the right to retain that 
frequency or, conversely, are the non-structural measures adopted by the 
Regulatory Authority for Communications appropriate and proportionate for the 
incumbents that originally owned the networks acquired in infringement of 
competition law? 
5. Does EU law and, in particular, Articles 8 and 9 of 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), Articles 3, 5, 7 and 14 of Directive 2002/20/EC of the 
European Parliament and of the Council of 7 March [2002] on the authorisation of 
electronic communications networks and services (Authorisation Directive), 
Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on 
competition in the markets for electronic communications networks and services, 
recitals 11 and 20 of Decision (EU) 2017/899, the principles of fairness, non-
discrimination, protection of competition and legitimate expectations, as well as 
the principles of proportionality and appropriateness, preclude [a system] such as 
that introduced by the relevant national legislation (Article 1(1030), (1031), 
(1031a), (1031b) and (1032) of Law No 205/2017), as well as Decisions Nos 
39/19/CONS, 128/19/CONS and 564/2020/CONS of the Regulatory Authority for 
Communications and related measures assigning rights of use of frequencies for 
the digital television service, which does not take into account the legitimate 
expectations of an operator who has acquired the right of use of the frequency 
following a fee-based competitive procedure in which express provision was made 
for the right to a frequency with similar coverage and of an equivalent duration to 
that of the right of use? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-764/23 
 
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Provisions of European Union law relied on 
Article 6 and the second part of Article 19(1) TEU. 
Article 47 of the Charter. 
Articles 3, 5, 7 and 14 of Directive 2002/20/EC of the European Parliament and of 
the Council of 7 March 2002 on the authorisation of electronic communications 
networks and services (Authorisation Directive). 
Article 3(3) and (3a), the first subparagraph of Article 4(1) and Articles 8 and 9 of 
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), as amended by Directive 2009/140/EC. 
Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on 
competition in the markets for electronic communications networks and services. 
Articles 5, 6, 8, 9, 31 and 45 of Directive (EU) 2018/1972 of the European 
Parliament and of the Council of 11 December 2018 establishing the European 
Electronic Communications Code (Recast). 
Recitals 11 and 20 of Decision (EU) 2017/899 of the European Parliament and of 
the Council of 17 May 2017 on the use of the 470-790 MHz frequency band in the 
Union. 
Among the many decisions of the Court cited, the following judgments are 
particularly relevant for a better understanding of the background to the present 
dispute: 31 January 2008, Centro Europa 7 (C-380/05); 26 July 2017, Europa 
Way and Persidera (C-560/15); 26 July 2017, Persidera, (C-112/16). 
Provisions of national law relied on 
Article 2058 of the codice civile (Italian Civil Code): ‘The injured party may 
apply for compensation in a specific form, where possible in whole or in part. 
Nevertheless, the court may order the reparation to be made in kind, if 
compensation in a specific form is excessively onerous for the debtor’. 
Article 30 of decreto legislativo del 2 luglio 2010, n. 104 (codice del processo 
amministrativo italiano) (Legislative Decree No 104 of 2 July 2010 (Italian Code 
of Administrative Procedure)): ‘1. The action for performance may be brought at 
the same time as another action, or separately in cases of exclusive jurisdiction 
and in the cases referred to in this article. 2. An award of damages may be sought 
for wrongful injury caused by the unlawful exercise of administrative activities or 
failure to exercise mandatory activities. In cases of exclusive jurisdiction, 
damages may also be sought for infringement of subjective rights. If the 
conditions provided for in Article 2058 of the Italian Civil Code are satisfied, a 
specific form of damages may be sought. … 
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Those two articles are relevant to the first question, as they set out the general 
rules that Cairo Network would like to see applied in its case. 
Below are several paragraphs from Article 1 of legge del 27 dicembre 2017, n. 
205 (legge di bilancio per il 2018) (Law No 205 of 27 December 2017 (2018 
Budget Law)), as amended by legge del 30 dicembre 2018, n. 145 (Law No 145 of 
30 December 2018), which form the main subject of the questions referred for a 
preliminary ruling: 
Paragraph 1030: ‘By 31 May 2018, the Regulatory Authority for Communications 
shall adopt the national plan for the allocation of frequencies for the digital 
terrestrial television service, considering the most advanced codification or 
standards to allow more efficient use of the radio spectrum and using the technical 
area criterion for local planning. By 31 January 2019, the Regulatory Authority 
for Communications shall update the national frequency allocation plan provided 
for in the preceding paragraph. To avoid radio interference with neighbouring 
countries, in each coordination area defined by the international agreements 
signed by the Ministero dello sviluppo economico (Ministry of Economic 
Development) and by the authorities of neighbouring States in implementation of 
Decision (EU) 2017/899 of 17 May 2017, referred to in paragraph 1026, only the 
frequencies assigned to Italy under those agreements shall be subject to planning. 
(…)’. 
Paragraph 1031: ‘In line with the objectives of the European and national 
audiovisual policy for social cohesion, media pluralism and cultural diversity, and 
with a view to the most efficient management of the radio spectrum permitted by 
the use of the most advanced technologies, all frequencies assigned nationally and 
locally for the digital terrestrial television service and allocated in VHF band III 
and 470-694 MHz shall be released according to the schedule referred to in 
paragraph 1032. For the purposes referred to in the first paragraph, the rights of 
use of frequencies owned by national network operators as of the date of entry 
into force of this law shall be converted into rights of use of transmission capacity 
in new national DVB-T2 multiplexes, according to the criteria defined by the 
Regulatory Authority for Communications by 31 March 2019 for the purpose of 
allocating the rights of use of the frequencies. By 31 March 2019, the Regulatory 
Authority for Communications shall establish the criteria for the allocation at 
national level of the rights of use of the frequencies planned pursuant to 
paragraph 1030 for the digital terrestrial television service to national network 
operators, taking into account the need to limit any network transformation and 
implementation costs, reduce the transitional period referred to in paragraph 1032 
and minimise the costs and impacts for end users. By 30 June 2019, the Ministry 
of Economic Development shall grant the rights of use of the frequencies referred 
to in the third paragraph to national network operators on the basis of the criteria 
defined by the authority referred to in that paragraph. The Regulatory Authority 
for Communications shall determine the economic terms and conditions, based on 
cost, according to which the concessionary of the public service in the multiplex 
containing regional information has the obligation to transfer a share of the 
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assigned transmission capacity, and in any event at least one programme, during 
the transitional period, to each of the parties lawfully operating in the local area 
and assigned the rights of use of channels CH 51 and 53 as of the date of entry 
into force of this law, who shall release their respective rights of use during the 
transitional period pursuant to paragraph 1032’. 
Paragraph 1031a: ‘The additional transmission capacity available at national level 
and the terrestrial frequencies, in addition to those intended for the conversion of 
the rights of use referred to in paragraph 1031 and planned by the Regulatory 
Authority for Communications in the national frequency allocation plan, to be 
assigned to the digital terrestrial television service for national network operators 
and the concessionary of the public broadcasting and multimedia service, shall be 
allocated by means of a fee-based procedure without further calls for tender, held 
by the Ministry of Economic Development by 30 November 2019, implementing 
the procedures established by the Regulatory Authority for Communications by 
30 September 2019 pursuant to Article 29 of the codice delle comunicazioni 
elettroniche (Italian Electronic Communications Code), as provided for in decreto 
legislativo 1°agosto 2003, n. 259 (Legislative Decree No 259 of 1 August 2003), 
on the basis of the following principles and criteria: (a) to allocate transmission 
capacity and frequencies on the basis of multiplexes equal in size to half of one 
multiplex; (b) to set a minimum bid value on the basis of the market values 
identified by the Regulatory Authority for Communications; (c) to assess the 
value of the economic tenders submitted; (d) to ensure the continuity of the 
service, the speed of the technological transition and the quality of the 
technological infrastructure made available by the national network operators 
active in the sector, including the concessionary of the public broadcasting and 
multimedia service; (e) to leverage the experience of national network operators in 
the sector, with particular reference to the implementation of digital broadcasting 
networks; (f) to build structural capacity to ensure radio spectrum efficiency, 
professionalism and expertise in the sector, technological innovation and optimal, 
effective and timely use of transmission capacity and additional frequencies; (g) to 
make better use of the radio spectrum, taking into account the current 
broadcasting of high-quality content via digital terrestrial television to the vast 
majority of the Italian population. The Ministro dell’economia e delle finanze 
(Minister for Economic Affairs and Finance) shall be authorised to provide, by 
decree, for the transfer of revenues, paid into a specific revenue account in the 
State budget, to specific expenditure accounts in the draft budget of the Ministry 
of Economic Development, for measures aimed at encouraging the purchase of the 
television reception equipment referred to in paragraph 1039(c), in accordance 
with the principle of technological neutrality, and to encourage the 
experimentation of new television technology, according to operating 
arrangements and delivery procedures determined by decree of the Ministro dello 
sviluppo economico (Minister for Economic Development), jointly with the 
Minister for Economic Affairs and Finance’. 
Paragraph 1031b: ‘The duration of the rights of use of the frequencies resulting 
from the conversion referred to in paragraph 1031 and those resulting from the 
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allocation by means of the procedure referred to in paragraph 1031a shall be 
established in accordance with the provisions of the Electronic Communications 
Code, referred to in Legislative Decree No 259 of 1 August 2003’. 
Paragraph 1032: ‘By 30 June 2018, the national calendar shall be determined, 
following a public consultation, by decree of the Minister for Economic 
Development. The national calendar shall identify the milestones of the roadmap 
for the implementation of the objectives of Decision (EU) 2017/899 of 17 May 
2017, referred to in paragraph 1026, taking into account the need to set a 
transitional period, from 1 January 2020 to 30 June 2022, to ensure the release of 
frequencies by all network operators holding the relevant rights of use at national 
and local level and the restructuring of the multiplex containing regional 
information by the concessionary of the public radio, television and multimedia 
service, in accordance with the following criteria: (a) the identification of the 
geographical areas in which the national territory is to be divided for the release of 
frequencies, partly to avoid or reduce radio interference with neighbouring 
countries using the 700 MHz frequency band for the mobile service with earlier 
deadlines than Italy; (b) the release, by the deadline referred to in subparagraph 
(f), by network operators holding local rights of use of all frequencies used as of 
the date of entry into force of this law and simultaneous activation of the 
frequencies intended by the national frequency allocation plan for local 
transmission; (c) the release, by the deadline referred to in subparagraph (f), by 
the concessionary of the public radio, television and multimedia service, of the 
frequencies used as of the date of entry into force of this law by the public service 
multiplex containing regional information and simultaneous activation of the 
frequencies intended by the national frequency allocation plan for the 
implementation of the new multiplex with segmentation by macro-area; (d) the 
release, by the deadline referred to in subparagraph (f), by national operators, of 
the frequencies in the 702-734 MHz frequency band corresponding to channels 
CH 50 to 53 and simultaneous activation of the available frequencies, to be 
identified taking into account the need to reduce disruption for users and ensure 
business continuity and the release, by the deadline referred to in subparagraph (f), 
by network operators holding local rights of use of the frequencies corresponding 
to channels CH 51 and 53 for successive geographical areas, as identified in 
subparagraph (a), at least during the transitional period from 1 January 2020 to 
31 December 2021; (e) the release of the remaining frequencies and activation of 
the frequencies provided for in the national frequency allocation plan which are 
the subject of the remaining national rights of use; (f) the determination of the 
deadlines, at least during the transitional period from 1 January 2020 to 
31 December 2021, for the sequence of releases and simultaneous activation of 
frequencies in accordance with the criteria for national operators holding the 
rights of use of channels CH 50 and 52 referred to in subparagraph (d), to be 
implemented for successive geographical areas as identified in subparagraph (a), 
for the sequence of releases of frequencies in accordance with the criteria for local 
operators holding the rights of use of channels CH 51 and 53 as referred to in 
subparagraph (d), to be implemented for successive geographical areas as 
identified in subparagraph (a), at least during the transitional period from 
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1 January 2020 to 31 December 2021, and the deadlines for the release of the 
remaining frequencies and activation of the frequencies provided for by the 
national frequency allocation plan, which are the subject of the remaining rights of 
use referred to in subparagraphs (b), (c) and (e). By 15 April 2019, the Minister 
for Economic Development shall update the decree referred to in the previous 
paragraph’. 
Paragraph 1037: ‘The allocation of rights of use of frequencies, the invitation to 
tender and the other procedures referred to in paragraphs 1026 to 1036, with 
particular reference to the procedures for releasing frequencies for the digital 
terrestrial television service, shall fall within the exclusive jurisdiction of the 
administrative court and the functional competence of the Regional 
Administrative Court of Lazio. Due to the major national interest in the prompt 
release and allocation of frequencies, the annulment of acts and measures adopted 
in the context of the procedures referred to in paragraphs 1026 to 1036 shall not 
entail compensation or enforcement in a specific form and any reparation due 
shall be made in kind. Interim relief shall be limited to the payment of a 
provisional amount’. 
With regard to the three decisions of the Regulatory Authority for 
Communications (‘AGCOM’) referred to in the third and fourth questions referred 
for a preliminary ruling, their content essentially consists of a rewording, 
consistent with the detailed technical data, of the guidelines set by the national 
legislature in the abovementioned paragraphs of the 2018 Budget Law. 
Succinct presentation of the facts and procedure in the main proceedings 
1 This case is the latest chapter in an affair that began prior to 2000. The 
protagonists are operators that, like Cairo Network, have been unsuccessful in 
their attempts to set up a nationwide analogue television broadcasting service, 
unable to overcome the insurmountable obstacle that the Corte costituzionale 
(Constitutional Court, Italy) has described as the ‘de facto use of frequencies (use 
of facilities without grant of rights or authorisations issued), with no logical 
increase in pluralism in the distribution of frequencies and no proper planning in 
regard to matters concerning the airwaves. Moreover, said use has been, on 
several occasions [and] for long periods of time, justified after the fact and 
remedied by allowing individual private broadcasters to continue their activities’. 
2 The Italian Constitutional Court has intervened several times in the matter, 
declaring unconstitutional a set of rules that prevented the effective 
implementation of the principle of information pluralism. On each occasion, the 
legislature was forced to amend the existing legislation, the distorting effects of 
which were temporarily prolonged each time without a definitive answer to the 
question being possible. 
3 This anomalous situation continued even during the switchover from analogue to 
digital transmission, since when it lay down the rules for the switchover, the 
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Italian legislature took as its starting point the very situation in which both the 
Italian Constitutional Court and the Court of Justice had found defects which had 
still not been fully resolved (see the three judgments of the Court of Justice cited 
above). 
4 Therefore, in a situation that had still not been clearly defined, the 2018 Budget 
Law was passed which, among the many measures, sought, on the one hand, to 
allocate frequencies in the 700 MHz frequency band (694-790 MHz) to terrestrial 
systems capable of providing wireless broadband electronic communication 
services, and on the other hand, to provide the broadcasting system with a new 
structure on a digital terrestrial platform (national and local) regarding the 
remaining frequencies available for the transmission service (174-230 MHz and 
470-694 MHz). 
5 The national authorities adopted the relevant measures, giving AGCOM the power 
to adopt the new national frequency allocation plan and criteria for converting the 
rights of use of frequencies of the national network operators that already held 
them into rights of use of transmission capacity, ensuring the transition from 
national multiplexes based on DVB-T technology to new national multiplexes 
based on DVB-T2 technology. The legislation also assigned the Ministero delle 
Imprese e del Made in Italy (Ministry of Business and Made in Italy) the task of 
setting the timetable for implementing Decision EU/2017/899 and of organising a 
fee-based procedure without further calls for tender for the allocation of residual 
transmission capacity. Under those provisions, the authority drew up the 2019 
national frequency allocation plan (approved by AGCOM Decision 
No 39/19/CONS) for a total of 12 new national DVB-T2 frequencies. 
Configuration parameters were also set for the conversion/direct assignment of 
only 10 DVB-T2 multiplexes converting the 20 national DVB-T networks. 
6 The referring court points out that the resulting national frequency allocation plan 
was drawn up with considerable difficulty when determining the conversion factor 
to be used to govern the transition from the previous transmission capacity held by 
the operators to the new transmission capacity: AGCOM, while trying to avoid 
excessive fragmentation of the market, was unable to decide on the conversion 
factor solely for technical reasons since, had it done so, it could not have made the 
frequency package (or ‘digital dividend’) available to the legislature to be 
allocated by means of a fee-based procedure, as specifically provided for in the 
2018 Budget Law. 
7 The plan drawn up in those circumstances thus raises several critical issues, which 
form the basis of the questions referred for a preliminary ruling in the present 
case. The new rules, by ignoring the irregularities already identified by the 
national and EU courts, do not seem to structurally address those anomalies; they 
do not reserve special attention for operators who have already acquired a 
frequency for consideration, expecting to be able to retain that frequency; they 
preclude free conversion procedures, but conversely impose a fee-based procedure 
and require the operator in question, vis-à-vis the rights already acquired, to bear 
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additional costs; they appear to limit unduly the power of discretion of the 
authority in charge of managing the broadcasting system, which should instead 
operate with complete independence; lastly, they undermine, by an exemption, the 
compensatory effects of any actions for annulment. 
The essential arguments of the parties in the main proceedings 
8 The referring court focuses exclusively on the complaints made by Cairo 
Network, which considers the public authority’s decisions during the refarming 
procedure to be unlawful, since: (a) they did not guarantee the conversion of the 
rights previously acquired by it, thereby breaching the principle of equality; (b) 
they undermined the legitimate expectations held by Cairo in view of the previous 
allocation of rights; (c) they contradicted what had been established by a previous 
measure in 2013 for the tendering procedure for a 20-year right of use; (d) they 
breached the constitutional principles and the principles of EU law of autonomy 
and independence of independent administrative authorities, given that Law 
No 205/2017 influenced criteria that only the authority had the power to set; (e) 
they also infringed (i) Article 4 TEU, contrary to the principles affirmed by the 
European Commission in the infringement procedure initiated against the Italian 
Republic on the ground that the television system was contrary to EU law; (ii) the 
principle of efficiency of the television spectrum enshrined in EU law; (iii) the 
right to renegotiate the conditions of the award; and lastly, (iv) the principles of 
free competition and equal treatment established by EU law. 
9 The appellant criticises in detail the technical aspects of the refarming procedure 
introduced by the national frequency allocation plan, alleging that the following 
were unlawful: (i) the planning, for the digital terrestrial television service, of 10 
national mux (in the UHF band) and 4 local mux (in the UHF band), and of a 
regionalised mux in the VHF band, resulting in a drastic 50% reduction in the 
current national mux (from 20 to 10), contrary to the principle of efficiency of the 
television spectrum; (ii) the absence of any obligation to reserve networks for 
local broadcasters; and (iii) the incorrect technical assessment. 
Succinct presentation of the reasoning in the reference for a preliminary 
ruling 
10 As to the first question, the referring court has doubts as to whether the choice 
made by the legislature in Article 1(1037) of the 2018 Budget Law complies with 
the principle of effective legal protection, to which every EU citizen is entitled 
under Article 47 of the Charter. By precluding any type of compensation or 
enforcement in a specific form as a means of redress potentially available to the 
operator concerned (contrary to that ordinarily provided for by the Italian Civil 
Code and Code of Administrative Procedure; see above), and by limiting that 
redress to monetary compensation, the legislature has designed a remedy which is 
incapable of compensating the economic operator for the damage caused by 
unlawful measures. The operator’s objective is to be assigned the rights of use of 
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radio frequencies, a situation requiring huge financial resources and complex 
corporate structures equipped to handle specific technology. The referring court 
has doubts as to whether the injury caused by the unlawful obstacles to reaping the 
benefits of such a commitment can be satisfied by a simple reparation in kind. 
Furthermore, the applicable legislation overlooks the fact that, apart from the 
operator’s interest, those activities are in the general interest of the community, 
ensuring both social cohesion and the cultural advancement of society. According 
to the national court, it seems unreasonable to invoke the ‘major national interest 
in the prompt release and allocation of frequencies’ as the justification for that 
exemption, as the national rules at issue do. 
11 As to the second question, the Council of State uses the explanations specifically 
requested from AGCOM to justify the choices made by that authority regarding 
the criteria for converting the rights of use of the old frequencies into the 
corresponding rights for the new frequencies. Although those explanations 
confirm the undisputed fact that the technical solutions that had to be adopted 
were extremely complex, they also reveal the decisive influence of the policy 
adopted by the legislature, in particular with Article 1(1031) and (1031a) of the 
2018 Budget Law (cited above). The referring court has doubts as to whether the 
highly detailed content of those provisions has substantially respected AGCOM’s 
fundamental prerogatives. As an NRA, AGCOM should always be, according to 
EU law (see, in particular, the Framework Directive and the European Electronic 
Communications Code cited above), completely autonomous and independent of 
the legislative, to be able to contribute to the effective implementation of that 
‘economic democracy’ which is essential so that every operator can have the same 
opportunity to compete within a free market. The referring court is concerned that, 
because the applicable provisions themselves determine the size of the multiplexes 
to be allocated as well as the related procedural rules, AGCOM’s discretion has 
been unlawfully curtailed. 
12 As to the third question, the referring court points out that the political choices 
made by the legislature – in the form of the rules inserted in the 2018 Budget Law 
and subsequent amendments (see above; in particular, Article 1(1031a)), requiring 
AGCOM to reorganise the frequency allocation plan so that not all the previous 
grants made are converted, but a significant share are reserved for allocation by 
means of a ‘fee-based procedure without further calls for tender’ – entailed, for an 
entity that already owned digital terrestrial frequencies, for the allocation of which 
that entity had already had to incur significant expenses in the past, the 
curtailment of the previous rights and the need to pay additional amounts simply 
to maintain an equivalent transmission capacity to its existing capacity. In the 
opinion of the Council of State, this is neither consistent with the relevant EU 
legislation (in particular, the relevant provisions of the Framework Directive and 
the Authorisation Directive), nor with the principles of equal treatment, non-
discrimination, protection of competition and legitimate expectations. When 
specifically questioned about the issue, AGCOM also disclosed to the referring 
court that ‘the technical discretion exercised by [AGCOM, by means of the 
decisions referred to in the third question,] in identifying the conversion factor 
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between [old and new digital] networks [was] inevitably influenced and 
constrained by the provisions of the 2018 Budget Law’. 
13 As to the fourth question, the referring court describes the complex events, never 
fully clarified, that have influenced regulatory development in the market for 
television broadcasting frequencies in Italy in recent decades (for more 
information, see the three judgments cited above in Cases C-380/05, C-560/15 and 
C-112/16). The Italian Government, repeatedly reminded by both national and EU 
courts of its duty to regulate the market in accordance with objective, transparent 
and non-discriminatory criteria, has never really managed to correct all the 
anomalies resulting from previous political choices. Moreover, in the opinion of 
the referring court, it has been unable to take advantage of the opportunity 
afforded to that end by the need to reorganise the market in order to make the 
transition from old to new transmission technologies. In summary, the referring 
court submits that: under Article 1(1031a) of the 2018 Budget Law, and as a result 
of the choices made by AGCOM, the previous rights were partially converted to 
form a frequency package to be allocated by means of a fee-based procedure; an 
operator who had acquired the rights of use of the frequencies was also required to 
undergo a conversion/allocation procedure which in practice curtailed the rights 
previously obtained; only the fee-based procedure was used as a rebalancing 
measure for the various positions, with asymmetrical rules that required less 
established operators in the market to incur additional costs to reach the minimum 
level necessary to maintain the positions they had previously managed to acquire. 
14 As to the fifth question, the Council of State first reconstructs the fee-based 
procedure that enabled Cairo Network to legally acquire, in 2014, the right to use 
a multiplex corresponding to two channels, which was unlawfully reduced to only 
one as a result of the refarming procedure. In the opinion of the referring court, 
this unjustifiably undermines the applicant’s legitimate expectations, which merits 
particular consideration since: (i) it is based on a specific public declaration 
concerning the replacement of the frequency awarded with another similar one; 
(ii) Cairo had obtained the mux following a competitive fee-based procedure, 
unlike other operators; (iii) it had still incurred costs and business risks to obtain 
the right of use and for the implementation and technical management of the mux 
and network; (iv) it was correct to consider it a new market operator, since it had 
started creating a high-quality, nationwide television network from July 2014, 
constructing 820 transmission facilities, completed in the first few months of 
2017, and making considerable economic sacrifices to enter a market dominated 
for decades by much stronger operators who had been able to consolidate their 
position with little transparency, as described previously (see paragraph 1 above).