Order;Information — ECLI:EU:C:2020:969
Date: 2020-11-26
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Internal market - Principles;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

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:  
13 July 2020 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
13 February 2020 
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 C­318/20 
 
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Subject matter of the main proceedings 
Appeal against the judgment 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 request 
This request for a preliminary ruling concerns the Italian legislation providing for 
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 contrary to the EU principle of non-discrimination on the 
basis of territory and, in general, to the Treaty provisions on free markets and 
competition, in particular Articles 18, 26 and 102 et seq. TFEU. 
Question referred 
‘Do the general principles laid down in Articles 18, 26 and 102 et seq. TFEU 
preclude a provision of national law that identifies procedures for calculating the 
rate applied for the performance by telecommunications operators of interception 
activities ordered by the judicial authorities, where that provision does not require 
compliance with the principle of the full reimbursement of costs?’ 
Provisions of EU law cited 
Articles 18, 26 and 102 et seq. TFEU 
Provisions of national law cited 
- 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. 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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- Article 96 of Legislative Decree No 259/2003 (‘the Electronic Communications 
Code’ (‘the ECC’)): 
‘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 operators; … 
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 …’ 
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 also 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C­318/20 
 
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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 then applicant 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, therefore, 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. 
Principal arguments of the parties to the main proceedings 
5 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 the EU principle of non-discrimination 
on the basis of territory and, in general, with the Treaty provisions on free markets 
and competition, in particular Articles 26 and 102 et seq. TFEU. Vodafone, in 
particular, is requesting that the matter be referred to the Court of Justice for a 
preliminary ruling if that interpretation of Article 96 were not to be upheld. 
6 Vodafone contends that since the mandatory services imposed under Article 96 of 
the ECC are required to be performed by all telephone operators, those parties 
must take into account, in their business decisions, the financial losses resulting 
from the performance of the mandatory services requested by judicial authorities. 
This could constitute a completely illogical and unlawful economic barrier to 
potential access to the market by new competitors, and indirect aid to smaller 
telephone operators in comparison with larger ones. Indeed, specifically because 
their user pool is bigger, these larger operators are more likely to receive requests 
from the judicial authorities under Article 96 of the ECC and, given the 
uneconomical nature of the services concerned, they are thus more likely to 
sustain adverse financial consequences. Furthermore, they would not be able to 
earn the higher revenues that they would generally achieve because of the larger 
size of their undertakings, given that the reduction in the amount of the rates 
indicated in the new list — approximately 90% of the values previously indicated 
by the Ministerial Decree of 2001 — has been established without any regard for 
these considerations and, in reality, results in financial losses for the individual 
telephone operators that are disproportionate to the number of customers.  
7 The higher charges imposed on telephone operators as a result of the performance 
of the services requested by the judicial authorities could ultimately have a 
substantial impact on the cost-effectiveness of the service provided to end 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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customers. This could generate a completely paradoxical and unlawful effect due 
to directly financial losses and losses of customers affecting Italian telephone 
operators and benefiting foreign EU operators.  
8 All of this would cause unlawful damage to the very public interest underlying 
Article 96 of the ECC and to the intelligence-gathering objectives of the judicial 
authorities, which in many cases would no longer be able to find any operators in 
a position to perform the services that are currently requested on a mandatory 
basis from national operators under Article 96 of the ECC. Purely by way of 
example, note should be taken, the appellants submit, of the SIM cards purchased 
in all those foreign countries where no documents are required to activate use. 
Because of the reduction in roaming charges, those SIM cards could very well be 
used in Italy, by means of over-the-top (OTT) services offered by foreign 
providers, which would be encrypted and therefore inaccessible to Italian 
operators. In this scenario, among other things, the public administration would 
have no power to request the services currently indicated in Article 96 of the ECC, 
because obvious reasons of territorial effectiveness of the provisions would mean 
that those foreign parties could not be made subject to orders issued by the Italian 
courts. 
Succinct presentation of the reasons for the request for a preliminary ruling 
9 The referring court has noted, for the purposes of this preliminary ruling, that 
Article 96 of Legislative Decree No 259/2003 contains the following provisions: 
- performance of the services for legal purposes by operators within the 
telecommunications sector is laid down by law as being ‘mandatory’ and thus 
required, essential and necessary; 
- the Ministries of Justice and Economic Development, in agreement with the 
Ministry of Economic Affairs and Finance, were required to issue a decree by 
31 December 2017 at the latest on the ‘revision of the items in the list included in 
the Decree of the Minister for Communications of 26 April 2001’; 
- the rates in question, including the ‘costs for all services simultaneously 
activated or used by each network identity’, must be set by the ministries ‘taking 
into account changes in costs and services, so as to achieve a cost saving of at 
least 50% compared with the rates applied’. 
10 It is clear, therefore, that the provision not only does not include any implicit 
criterion for determining that the rates be set on the basis of the principle of full 
reimbursement of the costs incurred by the operators but, on the contrary, 
constrains the ministerial authorities to set rates that will achieve a cost saving of 
at least 50% in comparison with the situation previously in force, this being the 
true intent of the rule. The changes in costs and services occurring since 2001 as a 
result of technological progress are, in fact, merely one element — albeit an 
important one — that the ministries are required to take into consideration in 
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determining the rates, in order to achieve the primary objective of the provision, 
namely a cost saving of at least 50% in comparison with the situation obtaining 
hitherto. 
11 The Consiglio di Stato finds that the interpretation put forward by Vodafone is 
without foundation, given that: 
- the directives relating to electronic communication services (primarily Directive 
2002/21/EC) do not expressly impose a requirement on the Member States to 
recognise full reimbursement of costs to operators, and it can therefore be held 
that this point has been implicitly left to the discretion of the Member States; 
- the amount of the rates is the same for all operators, large and small, Italian and 
foreign, and there is therefore neither a legal limitation on free competition and on 
a market without barriers nor a situation of discrimination on the basis of 
nationality; 
- on the basis of EU law, operators are required to perform the interception 
activities legally required by the judicial authorities, and the extent to which the 
corresponding costs are reimbursed cannot intrinsically constitute a source of 
distortion of this specific market, because these are activities imposed by law on 
all operators within that market that are active within Italian territory, for the 
purpose of attaining higher public-interest objectives; 
- more generally, the investigative activities intended to detect and combat 
criminal activity — which include interceptions — have a primary public-interest 
purpose, recognised as such also by EU law, and thus tolerate financial constraints 
only within narrow limits, especially where those constraints are intended to 
benefit private parties operating in regulated markets, such as the 
telecommunications market. 
12 In the view of the referring court, the provisions being examined are not, 
therefore, at variance with EU law. 
13 According to that court, however, the question has central and preliminary 
relevance in the present dispute, given that, if it were to be held that the EU 
principles in question preclude a national provision that identifies the procedures 
for calculating the rate for the performance of interception activities without 
imposing a requirement to comply with the principle of full reimbursement of 
costs, the substantive legality of the measure being challenged before this court 
would depend on it being determined that the measure is fully and effectively able 
to cover those costs in full. 
14 It is therefore necessary to refer the question to the Court of Justice, in accordance 
with Article 267 TFEU, in consideration of the monopoly on interpretation of EU 
law assigned to that Court by the Treaties, the nature of the Consiglio di Stato as a 
court of last instance, and the specific request for referral made by Vodafone. 
COLT TECHNOLOGY SERVICES AND OTHERS 
 
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15 Lastly, the referring court notes that the question at issue has not previously been 
interpreted by the Court of Justice.