Judgment;Summary — ECLI:EU:C:2025:126
Date: 2025-02-27
Language of the case: Slovenian
Court formation: Sixth Chamber
Subject matter: Provisions governing the Institutions;Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary C-562/23 – 1 
Case C-562/23 
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: 
11 September 2023 
Referring court: 
Upravno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer: 
24 August 2023 
Applicant: 
T-2 družba za ustvarjanje, razvoj in trženje elektronskih 
komunikacij in opreme d.o.o. 
Defendant: 
Agencija za komunikacijska omrežja in storitve Republike 
Slovenije 
  
Subject matter of the main proceedings 
Action before the Upravno sodišče (Administrative Court) seeking the annulment 
of the decision rejecting a request for the extension of the validity of a decision on 
the assignment of radio frequencies; European Electronic Communications Code; 
regulatory predictability for rightholders; clear, precise and unconditional nature 
of a provision of EU law; direct applicability of provisions of EU law 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are paragraphs (1) and (2) of Article 49 of the EECC Directive [(Directive 
(EU) 2018/1972 of the European Parliament and of the Council of 
EN 
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11 December 2018 establishing the European Electronic Communications 
Code)] clear, unconditional and sufficiently precise to enable individuals to 
rely on them in proceedings before national administrative authorities and 
national courts? 
2. Must paragraphs (1) and (2) of Article 49 of the EECC Directive also be 
applied to the extension of those individual rights of use for the RFS [(radio 
frequency spectrum)] which were granted prior to the entry into force of the 
EECC Directive, and what are the general criteria which apply in such a case 
in order to determine whether an individual right must be extended? 
3. If the answer to Question 2 is in the negative, for the purposes of assessing 
an appropriate duration of the individual rights of use for the RFS which 
were granted during the validity of the Authorisation Directive [(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)] 
and therefore in relation to the possibility of an extension of those rights, is 
it necessary to apply the provision set out in Article 5(2) of the 
Authorisation Directive or the fourth subparagraph of Article 5(2) of the 
Directive amending the Authorisation Directive [(Directive 2009/140/EC of 
the European Parliament and of the Council of 25 November 2009 amending 
Directives 2002/21/EC on a common regulatory framework for electronic 
communications networks and services, 2002/19/EC on access to, and 
interconnection of, electronic communications networks and associated 
facilities, and 2002/20/EC on the authorisation of electronic communications 
networks and services)], and are those provisions sufficiently clear, 
unconditional and precise to permit their use as a basis for assessing the 
appropriateness of the duration of an individual right of use for the RFS? 
4. If the answer to Question 3 is in the affirmative, what criteria should be 
applied for the purpose of assessing the appropriateness of the duration of an 
individual right of use for the RFS or the obligation to extend that right? 
5. If the answer to Question 1, 2 or 3 is in the affirmative, is it necessary, for 
the purposes of the decision on the extension, to take account of the fact that 
the possibility of an extension beyond 15 years was expressly excluded by 
the national provisions in force at the time when that right of use expired? 
Provisions of European Union law relied on 
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 Article 5; 
Directive 2009/140/EC of the European Parliament and of the Council of 
25 November 2009 amending Directives 2002/21/EC on a common regulatory 
framework for electronic communications networks and services, 2002/19/EC on 
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access to, and interconnection of, electronic communications networks and 
associated facilities, and 2002/20/EC on the authorisation of electronic 
communications networks and services (Directive amending the Authorisation 
Directive), in particular Article 3; 
Directive (EU) 2018/1972 of the European Parliament and of the Council of 
11 December 2018 establishing the European Electronic Communications Code 
(EECC Directive), in particular Article 49, Article 50(1) and Article 124. 
Provisions of national law relied on 
Article 155 of the Constitution of the Republic of Slovenia provides as follows: 
‘Laws, other rules and acts of a general nature cannot have retroactive effect. Only 
the law may provide that some of its specific provisions are to have retroactive 
effect, where the public interest so requires and provided that this does not affect 
acquired rights.’ 
Zakon o elektronskih komunikacijah (Law on Electronic Communications) (‘the 
ZEKom’) 
Article 50 of the ZEKom provided as follows: 
‘(1) The decision on the assignment of radio frequencies shall be issued by the 
Agency for a fixed period, and more specifically for a maximum duration of 
15 years, except for the assignment of radio frequencies for aeronautical and 
maritime mobile radiotelephony services. 
…’. 
Article 51 of the ZEKom provided as follows: 
‘The validity of a decision on the assignment of radio frequencies may be 
extended at the request of the rightholder if all of the conditions required at the 
time of the expiry of its validity for the use of those radio frequencies are 
satisfied.’ 
Zakon o elektronskih komunikacijah (‘the ZEKom-1’), which replaced the 
ZEKom on 15 January 2013 and remained applicable until 9 November 2022, 
because on 10 November 2022 the Zakon o elektronskih komunikacijah (‘the 
ZEKom-2’), by which the EECC Directive was transposed into national law, 
entered into force. 
Article 53(1) of the ZEKom-1 established the following: 
‘The decision on the assignment of radio frequencies shall be issued by the 
Agency for a fixed period, allowing an appropriate length of time, which is 
necessary for investment amortisation, and in any case for a maximum duration of 
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15 years, except for the assignment of radio frequencies intended for aeronautical 
and maritime mobile radiotelephony services.’ 
Article 54(1), (5) and (6) of that law provided as follows: 
‘(1) The validity of the decision on the assignment of radio frequencies, with the 
exception of decisions on the assignment of radio frequencies for the purpose of 
ensuring the provision of public communications services to end users, may be 
extended at the request of the rightholder if all of the conditions required at the 
time of the expiry of its validity for the use of those radio frequencies are satisfied, 
and taking into account the purposes set out in Articles 194, 195, 196 and 197 of 
this Law. 
… 
(5) If the extension is granted, the Agency shall issue a new decision on the 
assignment of radio frequencies. 
(6) The validity of the decision on the assignment of radio frequencies intended 
to meet measurement, certification and other radio equipment verification 
requirements cannot be extended; nor can the validity of the decision on the 
assignment of radio frequencies intended for public events.’ 
Article 240 of the ZEKom-1 established that decisions issued on the basis of the 
ZEKom could be amended, annulled or terminated under the conditions and in the 
manner laid down by the ZEKom-1. 
Article 307 of the ZEKom-2, by contrast, establishes that decisions issued on the 
basis of the ZEKom-1 and relating to time limits which had not yet expired when 
the ZEKom-2 entered into force are to be amended, annulled or terminated under 
the conditions and in the manner laid down by ZEKom-2. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, [T-2 družba za ustvarjanje, razvoj in trženje elektronskih 
komunikacij in opreme d.o.o. (T-2, a limited company for the creation, 
development and marketing of electronic communications and equipment)], was 
the holder of an individual right of use for the following radio frequencies: from 
1935 MHz to 1950 MHz and, in combination, from 2125 MHz to 2140 MHz and 
from 1910 MHz to 1915 MHz, which were assigned to it for the period from 
21 September 2006 to 21 September 2021 by means of a decision intended to 
ensure public communications services intended for end users (‘the decision on 
the assignment of radio frequencies’ or ‘the DARF’). By request dated 20 August 
2021, the applicant sought the extension of the validity of the DARF in so far as it 
refers to the pair of duplex frequencies from 1935 MHz to 1950 MHz and from 
2125 MHz to 1950 MHz. 
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2 On 1 October 2021, the defendant, the Agencija za komunikacijska omrežja in 
storitve Republike Slovenije (Agency for Communication Networks and Services 
of the Republic of Slovenia), rejected the request for the extension of the DARF 
on the ground that, pursuant to the ZEKom-1, it was not possible to extend beyond 
15 years the validity of the DARF intended to ensure communications services to 
end users. According to the defendant, the provision set out in Article 49 of the 
EECC Directive, relied on by the applicant, cannot be applied in the context of the 
extension decision because it is not legally complete. That provision constitutes, 
in part, an open rule, in so far as it must be supplemented by specific content, and 
also gives Member States discretionary power as to the manner in which it must 
be transposed into national law. The Republic of Slovenia, for example, decided 
that it would not transpose Article 49(2) of the EECC Directive into the new law 
at all, but provided at the outset for a 20-year period for the duration of rights. 
3 The defendant contends that, pursuant to Article 49 of the EECC Directive, the 
automatic extension of rights of use for the RFS, as proposed by the applicant, is 
not provided for either. In addition, the extension of the duration of individual 
[rights of use], in accordance with Article 49(3) of the EECC Directive, in order to 
ensure 20-year regulatory predictability, was provided for for the first time only 
under that directive. This means, however, that the conditions for the extension 
must already be known from the time that the rights of use for radio frequencies 
are granted. The assignment of the radio frequencies in question in 2006 did not 
require those conditions to be satisfied. 
The essential arguments of the parties in the main proceedings 
4 The applicant has brought an action for annulment of the decision by which the 
defendant rejected its request for an extension of the validity of the DARF. In the 
action, it submits that the defendant should, pursuant to Article 49(2) of the EECC 
Directive, in the case of decisions to assign radio frequencies for which a validity 
period of 15 years is fixed, have made it possible, before their expiry, to extend 
them for a further period of 5 years, given that the rules contained in the ZEKom-
1 are clearly contrary to the EECC Directive. In its view, the provision set out in 
Article 49(2) of that directive is clear, precise and unconditional, which is why it 
is directly applicable and effective. The purpose of that provision is to ensure legal 
certainty for current rightholders and regulatory predictability for a period of at 
least 20 years. It submits that, for that reason, the regulator is required, when the 
rights have been granted for 15 years, to initiate a renewal procedure at least 
2 years before the expiry date. The applicant emphasises that the EECC Directive 
is binding on the Republic of Slovenia from the day of its publication in the 
Official Journal of the European Union, namely from December 2018. 
Furthermore, it submits that that directive does not limit the application of 
Article 49(2) thereof solely to the extension of those individual rights of use for 
radio frequencies which were granted after the entry into force of that directive, 
but also applies to rights granted before the directive was adopted which had not 
yet expired at the time of its entry into force. Therefore, the defendant should, on 
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the basis of that provision of the EECC Directive, have also made it possible, from 
21 December 2020, for the holders of rights granted to them for a period of less 
than 20 years to extend their validity to 20 years. The same applies to the 
applicant, inasmuch as the 15-year period for which it received the radio 
frequencies at issue expired on 21 September 2021, with the result that, when the 
EECC Directive entered into force or when the period for its transposition ended, 
the applicant’s right had not yet expired. The applicant claims that the 
Administrative Court should annul the contested decision and refer the case back 
to the defendant for a new decision. 
5 In its defence, the defendant contends that Article 49(2) of the EECC Directive is 
a rule of conditional application and that it gives the Member States discretionary 
power, inasmuch as it does not require them to grant an automatic extension. The 
defendant also contends that the extension of the duration of individual [rights of 
use] for wireless broadband electronic communications services is provided for in 
order to ensure 20-year regulatory predictability only for those radio frequencies 
which have been assigned since the entry into force of the EECC Directive and 
that that provision cannot be applied retroactively. The defendant emphasises that 
the conditions for granting the extension should already have been known at the 
time when the right of use for the radio frequencies was granted, and therefore on 
9 June 2006 when the public call for tenders for the frequencies in question was 
published in the Official Gazette of the Republic of Slovenia. Since the 
aforementioned public call for tenders and subsequently the DARF did not 
provide for the possibility of extension, the DARF in question, in the light of the 
wording of Article 49 of the EECC Directive, cannot be extended. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 In the present case, the question arises as to whether it is necessary to ensure the 
full effectiveness of the EECC Directive by extending the DARF, or whether the 
rules on the duration of individual rights of use for the RFS laid down by that 
directive apply only to those rights which have been granted after the entry into 
force of that directive. If this is not the case, the question arises as to whether the 
full effectiveness of the Authorisation Directive must be ensured by considering 
whether the DARF at issue should be extended. 
7 The decisive legal circumstances relevant to the present case are as follows: 
1. the defendant adopted the DARF on 21 September 2006 for a period of 
15 years, that is, until 21 September 2021; 
2. on the date on which the right was granted, namely 21 September 2006, the 
Authorisation Directive was in force in the European Union. That directive 
provided that the duration of the right of use, where it is granted for a specific 
period, must be appropriate for the service in question; however, in the Republic 
of Slovenia, the ZEKom was in force, which allowed the extension of any DARF 
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beyond 15 years if all of the conditions which were required at the time of the 
expiry of that decision for the use of those radio frequencies were satisfied; 
3. on 21 September 2021, when the DARF expired, the EECC Directive was in 
force in the European Union. That directive does not expressly dictate the manner 
in which the Member States must regulate the extension of individual rights of use 
for the RFS which were not granted during the validity of that directive but before 
it, and which were still valid at the time when that directive entered into force; 
4. on 21 September 2021, the Republic of Slovenia had to apply the ZEKom-1, 
which, in the case of an individual right of use for the RFS granted in order to 
ensure public communications services to end users, expressly excluded the 
possibility of an extension beyond 15 years; 
5. at the time when the DARF ceased to be valid (21 September 2021), the 
Republic of Slovenia had not yet transposed the EECC Directive into its legal 
system, which it should have done by 20 December 2020. 
8 Therefore, the decision in the present case depends entirely on whether 
Article 49(1) and (2) of the EECC Directive is directly applicable, so that the right 
of use must, as a rule, after the expiry of a period of 15 years, be extended for a 
further 5 years, and whether the aforementioned rule (also) applies to those 
individual rights of use for the RFS which arose prior to the entry into force of the 
EECC Directive and which had not yet expired at the time of the entry into force 
of that directive, or whether Article 5 of the Authorisation Directive is directly 
applicable to those rights which are still in existence and whether it is necessary, 
at the time of the expiry of the DARF, to assess the appropriateness of its duration 
or an appropriate period for investment amortisation, on the ground that that 
provision precludes a national provision pursuant to which an extension beyond 
15 years is excluded without regard to the appropriateness of the duration or to 
investment amortisation. 
9 It is not disputed that the Republic of Slovenia failed to transpose the EECC 
Directive into its legal system in a timely manner. For that reason, the 
Administrative Court has doubts as to the unconditional and precise nature of the 
provisions set out in the first, second, third and fourth subparagraphs of 
Article 49(2) of the EECC Directive. For the purposes of the decision in the 
present case, the decisive factor is how the concept of ‘regulatory predictability 
for rightholders’ is to be interpreted. The applicant interprets it as meaning that the 
right must be granted for a period of 15 years, and that the 20-year predictability is 
ensured by recognition of the need to extend that right by a further 5 years in 
accordance with the requirements laid down in Article 49(1) of that directive, 
unless it is established that that extension would not be in line with the general 
criteria laid down in point (a) or point (b) of the third subparagraph of 
Article 49(2) thereof, or unless the competent authority has initiated enforcement 
action against the holder for non-compliance with the conditions attached to the 
rights of use, within the meaning of the fourth subparagraph of Article 49(2). 
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10 In the referring court’s view, it is not clear whether the Member States are free to 
determine the conditions under which they will ensure the 20-year predictability 
of the right of use, that is, the conditions under which they will, where they decide 
that the validity of that right is 15 years, guarantee an extension of that right for a 
further 5 years. In addition, that court also questions whether the EECC Directive 
is sufficiently precise for it to be able to base its decision thereon. 
11 The question is therefore whether that directive authorises the Member States to 
decide which conditions they will take into consideration when extending the 
right. The third subparagraph of Article 49(2) of the EECC Directive in particular 
points in this direction, providing that the Member States, before granting the 
right, are to make available to all interested parties the general criteria for an 
extension of the duration of rights of use, and subsequently specifies the 
requirements to which such general criteria may relate. If the conditions laid down 
by that directive applied directly, the provision of particular access to those 
criteria would not be necessary, as it must be considered that the criteria, if they 
appear in a rule that has already been published, are known or must be known to 
those for whom they are intended. 
12 On the other hand, the [referring] court questions whether the directive itself 
already lays down general conditions that must be satisfied in the context of 
extension (ensuring competition, effective use of the RFS, promoting innovation 
and investments, invested capital). Above all, however, it seems to that court that 
it is unclear whether the State may decide, on the basis of its own discretionary 
assessment, that the extension depends on the extent of the investments in 
infrastructure, or whether the directive itself already provides that that condition, 
and therefore the amortisation of the invested capital, is essential for the 
extension, as this view emerges in both paragraph (1) and paragraph (2) of 
Article 49; it also questions the nature of the relationship between the different 
criteria, in other words, which criterion must take precedence over the others, or 
whether the Member States are free to define this aspect (only) when transposing 
the directive. 
13 In the event that the Court of Justice answers in the affirmative the question 
whether Article 49(1) and (2) of the EECC Directive has direct effect in vertical 
legal relationships, the Administrative Court also asks whether that directive 
imposes 20-year predictability or a 5-year extension of a 15-year right (subject to 
certain conditions) for individual rights of use for the RFS which were granted 
prior to the entry into force of that directive. Article 124 of the EECC Directive 
does not lay down transitional arrangements for those rights, and the referring 
court is not in a position to infer the purpose of that directive in relation to those 
relationships, including from its recitals. The fact that that directive does not apply 
retroactively could at most be inferred from the third subparagraph of 
Article 49(2) thereof, which provides that the extension criteria must be known 
before the rights are granted, and from the fourth subparagraph of that provision, 
according to which the extension procedure is to begin at the latest two years 
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before the expiry. For rights which expire earlier than two years after the entry 
into force of the EECC Directive, it is not possible to ensure that period. 
14 In addition, the [referring] court questions whether, in the light of the provision set 
out in Article 50(1) of the EECC Directive, the extension decision may be affected 
by the fact that the possibility of extending the right was expressly excluded by 
virtue of the law in force at the time when that right expired. 
15 In the event of a negative answer to the question whether the EECC Directive 
applies to the extension of rights of individual use for the RFS granted prior to the 
entry into force of that directive, the Administrative Court questions whether the 
same effect as that required by that directive must be ensured on the basis of the 
rule, in force at the time of the granting of the right, laid down in Article 5(3) of 
the Authorisation Directive, according to which the duration of the right must be 
appropriate for the service in question, or must take account of the fact that an 
appropriate period is necessary for investment amortisation, where that provision 
is unconditional and clear and does not require the adoption of any act of the 
institutions of the European Union or of the Member States. The Administrative 
Court is aware of the case-law of the Court of Justice which, in Case C-205/20, 
held that the provision set out in Article 20 of [Directive 2014/67/EU of the 
European Parliament and of the Council of 15 May 2014 on the enforcement of 
Directive 96/71/EC concerning the posting of workers in the framework of the 
provision of services and amending Regulation (EU) No 1024/2012 on 
administrative cooperation through the Internal Market Information System], 
according to which the financial penalties provided for must be effective, 
proportionate and dissuasive, has direct effect. Appropriateness and 
proportionality are comparable concepts in terms of clarity and the absence of 
conditionality. If the abovementioned provisions of the Authorisation Directive or 
the Directive amending the Authorisation Directive must be applied, the referring 
court questions which criteria must be applied for the extension of an individual 
right of use for the RFS.