Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 29 September 2020 — Fastweb SpA and Others v Autorità per le Garanzie nelle Comunicazioni

(Case C-468/20)

(2022/C 257/20)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellants: Fastweb SpA, Tim SpA, Vodafone Italia SpA, Wind Tre SpA

Respondent: Autorità per le Garanzie nelle Comunicazioni

Questions referred

1. Does the correct interpretation of Article 267 TFEU require the national court, against whose decisions there is no judicial remedy under national law, to make a reference for a preliminary ruling on a question of interpretation of the relevant [EU] law in the main proceedings, even where there is no doubt as to the interpretation of the relevant EU provision — taking into account the terminology and meaning specific to [EU] law attributable to the wording of the relevant provision, the applicable European regulatory framework and its underlying objectives of protection, considering the stage of development of EU law when the relevant provision is to be applied in the national proceedings — but it is not possible to establish in detail, from a subjective point of view, with regard to the conduct of other courts, that the interpretation of the referring court is the same as the one likely to be given by the courts of the other Member States and by the Court of Justice, to which the same question is referred?

2. Does the correct interpretation of Articles 49 and 56 TFEU, and of the harmonised regulatory framework as enshrined in Directives 2002/19/EC, (1) 2002/20/EC, (2) 2002/21/EC (3) and 2002/22/EC (4) — and in particular in Article 8(2) and (4) of Directive 2002/21/EC, as amended by Directive 2009/140/EC, (5) Article 3 of Directive 2002/20/EC, as amended by Directive 2009/140/EC, and Articles 20, 21 and 22 of Directive 2002/22/EC, as amended by Directive 2009/136/EC (6) — preclude a national rule such as that inferred from the provisions of Articles 13, 70 and 71 of Decreto Legislativo n. 259/03 (Legislative Decree No 259/03) in conjunction with Article 2(12)(h) and (l) of Legge n. 481/1995 (Law No 481/1995) and Article 1(6)(2) of Legge n. 249/1997 (Law No 249/1997), which gives the national regulatory authority in the electronic communications sector the power to impose: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a timeframe for the renewal of offers and for billing at intervals of one month or multiples thereof and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?

3. Does the correct interpretation and application of the principle of proportionality, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — and in particular in Article 8(2) and (4) of Directive 2002/21/EC, as amended by Directive 2009/140/EC, Article 3 of Directive 2002/20/EC, as amended by Directive 2009/140/EC, and Articles 20, 21 and 22 of Directive 2002/22/EC, as amended by Directive 2009/136/EC — preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?

4. Does the correct interpretation and application of the principles of non-discrimination and equal treatment, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — and in particular in Article 8(2) and (4) of Directive 2002/21/EC, as amended by Directive 2009/140/EC, Article 3 of Directive 2002/20/EC, as amended by Directive 2009/140/EC, and Articles 20, 21 and 22 of Directive 2002/22/EC, as amended by Directive 2009/136/EC — preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof; (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?

(1) Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7).

(2) 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) (OJ 2002 L 108, p. 21).

(3) 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) (OJ 2002 L 108, p. 33).

(4) Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

(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 access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).

(6) Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ 2009 L 337, p. 11).