Opinion of the Advocate-General



Opinion of the Advocate-General

1. By its order for reference in the present case, the Consiglio di Stato (Council of State) (Italy) asks the Court a wide range of questions regarding fair competition, freedom to provide services, freedom of expression, as well as the principle of pluralism of the media. The main proceedings concern a television company that, several years after having obtained national broadcasting rights in a public tender procedure, has not yet been assigned the radio frequencies necessary to exercise those rights. Meanwhile, national legislation has allowed incumbent operators to continue their broadcasting activities and to use radio frequencies, thus effectively prolonging a situation which is at odds with the outcome of the public tender procedure. I shall address the problems raised by the referring court mainly in the light of the rules on freedom to provide services.

I – Facts, national legal framework and reference for a preliminary ruling

2. The relevant national legal framework is a complex amalgam of laws and decree‑laws, but three legislative measures have, consecutively, formed the cornerstone of the rules in respect of national broadcast television: Law No 223/1990 (‘the Mammì Law’), (2) Law No 249/1997 (‘the Maccanico Law’) (3) and Law No 112/2004 (‘the Gasparri Law’). (4)

3. The Maccanico Law was adopted in July 1997, after the Corte Costituzionale (Constitutional Court) (Italy) had held, by a ruling of December 1994, (5) that the antitrust provisions in the Mammì Law were inadequate to prevent dominant positions which could threaten pluralism of the media. The Maccanico Law created the Autorità per le garanzie nelle comunicazioni (Communications Regulatory Authority, ‘AGCom’) and introduced new restrictions on concentration in the market for national broadcast television, with a view to ensuring competition and respect for the principle of pluralism. Under the Maccanico Law, no one was to be allowed to operate more than 20% of national broadcast channels as from 30 April 1998.

4. The Maccanico Law also provided transitional rules for incumbent operators with existing channels exceeding the 20% threshold. According to the transitional rules, those operators would be allowed to continue their broadcasting activities after 30 April 1998 on a temporary basis, on condition that they broadcast on terrestrial frequencies and, at the same time, on cable or satellite television. The Law provided that channels which breached the threshold were eventually to cease terrestrial broadcasting, following the adoption of a national plan for the allocation of frequencies.

5. In view of the objectives of the Maccanico Law, a public tender procedure was initiated, in March 1999, for the rights for national television broadcasting on terrestrial frequencies. Due to technical limitations, the number of terrestrial channels could not exceed 11. Three channels were reserved for public television, while a maximum of eight channels were available for private operators.

6. Having participated successfully in the tender procedure, Centro Europa 7 Srl (‘Europa 7’) obtained national television broadcasting rights. The rights were granted by Ministerial Decree of 28 July 1999, issued on 28 October of the same year. Regarding the specific frequencies, the Decree referred to the national allocation plan which had yet to be implemented. According to the Decree, the AGCom and the Ministry of Communications were to implement the national allocation plan within 24 months from the notification of the Decree. In the event of ‘objective impediments’ that period could be extended for another 12 months.

7. The national allocation plan failed to materialise. As a result, Europa 7 did not receive any frequencies and, despite having obtained broadcasting rights, was not able actually to start broadcasting. In the meantime, a series of successive laws and judicial decisions allowed incumbent operators, including those who had been unsuccessful in the tender procedure, to continue their broadcasting operations.

8. For instance, Law No 66/2001, (6) which regulated the transition from analogue to digital television, allowed these operators to continue broadcasting by terrestrial frequencies until the implementation of a national plan for the allocation of frequencies for digital broadcast television. That plan was supposed to come into effect on 31 December 2002 at the latest. The deadline expired, but no plan was ever drawn up.

9. In a ruling of 20 November 2002, the Corte Costituzionale held that the transfer of channels that exceeded the 20% antitrust threshold from terrestrial television to cable or satellite television should take place no later than 31 December 2003, regardless of the state of developments with respect to digital television. (7) Yet, despite that ruling, the possibility for incumbent operators to keep using terrestrial frequencies for channels exceeding the antitrust threshold was again extended by Decree‑law No 352/2003 (8) (subsequently converted into Law No 43/2004 (9) ) and by the Gasparri Law.

10. The Gasparri Law effectively allowed incumbent operators to use frequencies for channels exceeding the antitrust threshold, thus blocking the release of those frequencies for new operators such as Europa 7, pending the implementation of a national plan for the allocation of frequencies for digital television. In addition, under the Gasparri Law, only active operators were eligible to apply for the right to use frequencies for digital television. Lastly, the Gasparri Law redefined the 20% threshold which had been introduced by the Maccanico Law.

11. Thus, at the material time, certain operators in national broadcast television had not obtained broadcasting rights, but were none the less allowed to continue their broadcasting activities, even though they exceeded the antitrust threshold. Europa 7, despite having obtained broadcasting rights, could not start operating since it had not received the necessary frequencies. In addition, Europa 7, not being an active operator, could not obtain broadcasting rights for digital television.

12. After the period of 24 months following the notification of its broadcasting licence had expired, Europa 7 brought proceedings before the Tribunale Amministrativo Regionale Lazio (Latium Regional Administrative Court). It asked that the competent administrative authorities be ordered to allocate the necessary frequencies and to pay compensation in respect of the losses suffered in the interval. In the alternative, in case the allocation of frequencies should prove impossible, Europa 7 claimed reparation. The Tribunale Amministrativo Regionale Lazio held that Europa 7 did not have an enforceable claim (‘diritto soggettivo’) to have specific frequencies allocated to it and dismissed the action in its entirety. Europa 7 subsequently lodged an appeal before the Consiglio di Stato.

13. Throughout the national legal proceedings, the Italian authorities invoked Decree‑law No 352/2003 and the Gasparri Law in their defence. In that context, the Consiglio di Stato has referred a raft of questions to the Court of Justice:

‘1. Does Article 10 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms (“the ECHR”)], as referred to in Article 6 of the Treaty on European Union, guarantee pluralism in the broadcasting sector, thus requiring the Member States to secure pluralism and competition in the sector based on an antitrust system which, in step with technological development, secures network access and a multiplicity of operators and renders duopolistic market behaviour unlawful?

2. Do the provisions of the EC Treaty which secure freedom to provide services and competition, on the interpretation provided by the Commission in the interpretative communication of 29 April 2000 on grants of rights under Community law, require the principles governing that matter to be capable of ensuring equal non‑discriminatory treatment, as well as transparency, proportionality and respect for the rights of individuals; and are those provisions and principles of the Treaty infringed by Article 3(7) of Italian Law No 249/1997, and by Article 1 of Decree‑law No 352 of 24 December 2003 converted into Law No 112/2004 (Gasparri Law), [(10) ] inasmuch as those provisions enabled individuals operating networks in breach of the limits laid down by competition law to continue to operate, thereby excluding operators, such as the appellant undertaking, which, though in possession of the relevant rights granted following a regular competitive procedure, were unable to carry on the activity in respect of which such rights were granted because of a failure to allocate frequencies owing to their insufficient number or scarcity as a result of the continued exercise of rights by the owners of networks in breach of the limits on concentrations under antitrust law?

3. With effect from 25 July 2003, does Article 17 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)] render that directive directly effective in the internal legal order and oblige a Member State which has granted broadcasting rights (right to install networks or provide electronic communication services or the right to use frequencies) to bring them into line with Community rules; and does that entail the need actually to allocate the frequencies necessary for carrying on the activity in question?

4. Do Article 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)] and Article 5 of the Authorisation Directive providing for transparent and non‑discriminatory public procedures (Article 5) conducted on the basis of objective, transparent, non‑discriminatory and proportionate criteria (Article 9) preclude a system providing for general authorisation under national law (Article 23(5) of Law No 112/2004); by permitting the continued operation, under that system of networks in breach of limits and not selected under a competitive procedure, do those provisions ultimately impinge on the Community‑law rights under (Article 17(2) of Directive 2002/20 …) of other undertakings which are prevented from operating even though they have been successful in competitive procedures?

5. Do Article 9 of Directive 2002/21 …, the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20 …, and Article 4 of [Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services], require the Member States to arrange for the cessation, at least as from 25 July 2003 (see Article 17 of the Authorisation Directive), of a situation of de facto use of frequencies (use of facilities without grant of rights or authorisations issued following a selection procedure), on the basis of the broadcasting system already in place, so that broadcasting cannot be undertaken where there is no proper planning in regard to matters concerning the airwaves and no logical increase in pluralism, in contravention of rights awarded by the Member State following a public procedure?

6. Is the derogation in the second subparagraph of Article 5(2) of Directive 2002/20 …, and in Article 4 of Directive 2002/77 …, available to be relied on by the Member State solely in order to protect pluralism of information and to guarantee the protection of cultural or linguistic diversity and not in favour of operators of networks in breach of the antitrust limits laid down in national competition legislation?

7. In order to benefit from the derogation under Article 5 of Directive 2002/20 …, does the Member State have to indicate the objectives actually pursued by the national derogatory rules?

8. May that derogation be applied, in addition to the case of the concessionary of the public broadcasting service (RAI in Italy), in favour also of private operators who have been unsuccessful in competitive procedures and to the detriment of undertakings who may have duly been granted rights following a competitive procedure?

9. Under Community rules (primary and secondary legislation) on workable competition in the broadcasting sector, ought the national legislature to have avoided extending the old transitory analogue system on the advent of the terrestrial digital system (and the attendant generalised transition to digital)? Only if analogue broadcasting is ended and replaced by the switch to digital will it be possible to reallocate frequencies freed for various uses. If terrestrial digital is merely operated alongside analogue, there will be an attendant accentuating of the scarcity of available frequencies owing to the existence of analogue and digital transmission in parallel (simulcast)?

10. Lastly, is the pluralism of sources of information and of competition in the broadcasting sector, which is guaranteed by European law, secured by national rules, such as Law No 112/2004 providing for a new limit of 20 per cent of resources linked to a new very wide criterion (the ICS – integrated communications system – Article 2(g) and Article 15 of Law No 112/2004). This criterion also brings in activities which do not affect media pluralism, whereas under antitrust law the “relevant market” is constructed normally by differentiating the markets in the broadcasting sector by drawing a distinction between pay/TV and non‑pay TV operating via the airwaves (reference is made inter alia to [Commission Decision of 21 March 2000 declaring a concentration to be compatible with the common market (Case No COMP/JV. 37‑BSKYB/Kirch Pay TV], based on [Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings] Merger Procedure 21/03/2000 and [Commission Decision of 2 April 2003 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M. 2876 –Newscorp/Telepiù), based on [Regulation No 4064/89].’

II – Preliminary remarks on the jurisdiction of the Court to review national acts for their conformity with fundamental rights

14. By its first question, the referring court seeks an interpretation of Article 10 of the ECHR and asks the Court of Justice to clarify the obligations that apply to the Member States by virtue of the right to freedom of expression and the corollary notion of pluralism of the media.

15. Respect for freedom of expression constitutes a principle on which the European Union is founded. However, that does not automatically mean that the Court of Justice has jurisdiction to examine whether a Member State has violated the right to freedom of expression. As the Court has held on numerous occasions, it only has power to examine the compatibility with fundamental rights of national rules which fall within the scope of Community law. (11)

16. Arguments have been made in the past to extend the role of the Court in reviewing Member State measures in order to assess their conformity with fundamental rights. In his Opinion in Konstantinidis , Advocate General Jacobs expressed the view that any national of one Member State who pursues an economic activity in another Member State may, as a matter of Community law, invoke the protection of his fundamental rights:

‘In my opinion, a Community national who goes to another Member State as a worker or self‑employed person … is entitled not just to pursue his trade or profession and to enjoy the same living and working conditions as nationals of the host State; he is in addition entitled to assume that, wherever he goes to earn his living in the European Community, he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention of Human Rights. In other words, he is entitled to say “ civis europeus sum ” and to invoke that status in order to oppose any violation of his fundamental rights.’ (12)

17. The Court, however, did not follow this suggestion. In other words, the Court did not endorse the view that any violation, by the host State, of a fundamental right of a national from another Member State may hamper the exercise of the right to free movement. Though I do not wish to propose that the Court reverse its long‑established viewpoint in this matter, I believe that the time is ripe to introduce a refinement into this line of case‑law.

18. Since the adoption of the Treaty of Amsterdam, respect for fundamental rights is a formal legal requirement for membership of the European Union. (13) Article 6 EU, as amended by that Treaty, now firmly proclaims that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. Article 7 EU sets out a mechanism for imposing sanctions on a Member State where there is a clear risk of a serious breach of those principles, thus confirming that respect for fundamental rights is an indispensable condition of EU membership.

19. Certainly, these provisions do not aim to extend the scope of application of fundamental rights, as a matter of EU law, to any Member State measure. Yet, it cannot be denied that they give expression to the profound conviction that respect for fundamental rights is intrinsic in the EU legal order and that, without it, common action by and for the peoples of Europe would be unworthy and unfeasible. In that sense, the very existence of the European Union is predicated on respect for fundamental rights. Protection of the ‘common code’ of fundamental rights accordingly constitutes an existential requirement for the EU legal order.

20. Against this background, the Court fulfils its function of ensuring the observance, by the Member States, of fundamental rights as general principles of law. (14) In this respect, a distinction must be drawn between, on the one hand, jurisdiction to review any national measure in the light of fundamental rights and, on the other hand, jurisdiction to examine whether Member States provide the necessary level of protection in relation to fundamental rights in order to be able adequately to fulfil their other obligations as members of the Union. The first type of review does not yet exist and is not within the Union’s current competences. However, the second type of review flows logically from the nature of the process of European integration. It serves to guarantee that the basic conditions are in place for the proper functioning of the EU legal order and for the effective exercise of many of the rights granted to European citizens. Though the degree of protection of fundamental rights at national level does not have to be exactly the same as the degree of protection of fundamental rights at the level of the European Union, there must be some measure of equivalence in order to ensure that the law of the Union can operate effectively within the national legal order.

21. The scenario may seem unlikely at first sight, but I do not discount, offhand, the idea that a serious and persistent breach of fundamental rights might occur in a Member State, making it impossible for that State to comply with many of its EU obligations and effectively limiting the possibility for individuals to benefit fully from the rights granted to them by EU law. For instance, it would be difficult to envisage citizens of the Union exercising their rights of free movement in a Member State where there are systemic shortcomings in the protection of fundamental rights. Such systemic shortcomings would, in effect, amount to a violation of the rules on free movement.

22. My suggestion is not that any violation of fundamental rights within the meaning of Article 6(2) EU constitutes, of itself, an infringement of the rules on free movement. Only serious and persistent violations which highlight a problem of systemic nature in the protection of fundamental rights in the Member State at issue, would, in my view, qualify as violations of the rules on free movement, by virtue of the direct threat they would pose to the transnational dimension of European citizenship and to the integrity of the EU legal order. However, so long as the protection of fundamental rights in a Member State is not gravely inadequate in that sense, I believe the Court should review national measures for their conformity with fundamental rights only when these measures come within the scope of application of the Court’s jurisdiction as defined in its case‑law to date. (15)

23. As to the present case, I propose that the Court remain faithful to its conventional approach. This is not to say that the first question asked by the national court, as regards the right to freedom of expression, is devoid of relevance. However, as we shall see, its relevance is auxiliary to the issue whether there has been a restriction of free movement.

III – Rephrasing the questions referred for a preliminary ruling

24. This brings us to the other questions asked by the national court. Unfortunately, the way in which those questions are formulated is problematic in several respects. First of all, the referring court essentially asks the Court of Justice to determine the compatibility of national legislation with Community law. Yet, under the preliminary ruling procedure, it is not the task of the Court to do so. Its role is confined to providing an interpretation of the relevant provisions of Community law. It is up to the referring court to determine if its national law is compatible with those provisions. (16)

25. Moreover, it is necessary to moderate the scope of the referring court’s request for a preliminary ruling. The questions of the Consiglio di Stato touch upon various aspects of the Italian legislation. However, it would be inappropriate for the Court to deal with questions of Community law that are not necessary to resolve the dispute in the main proceedings. The Court has held that such questions are inadmissible. (17) In conformity with that case‑law, I shall not deal with the referring court’s questions pertaining to the eligibility criteria for obtaining rights for digital television and the new definition, under the Gasparri Law, of the relevant broadcasting market.

26. Another part of the request for a preliminary ruling is inadmissible for a different reason. In the context of the preliminary ruling procedure, it is important that the referring court defines the factual circumstances of the questions it asks, so that the Court of Justice can give a useful interpretation of the relevant provisions of Community law. (18) As the Court held in Telemarsicabruzzo , this is ‘of particular importance in the field of competition, which is characterised by complex factual and legal situations.’ (19)

27. It would seem that, where the referring court asks, by its second question, for an interpretation of the Treaty rules on competition, it does so primarily with a view to Article 86(1) EC, read in conjunction with Article 82 EC. According to the Court’s case‑law, a Member State infringes the prohibitions laid down by those two provisions where it confers special or exclusive rights on an undertaking that ‘merely by exercising [those rights], is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses.’ (20) However, the order for reference does not contain any indication regarding, in particular, the definition of the relevant market, the calculation of the market shares held by the various undertakings operating on that market, and the supposed abuse of a dominant position. In those circumstances, the enquiry of the referring court concerning the Treaty rules on competition must be held to be inadmissible. (21)

28. In so far as the reference for a preliminary ruling is admissible, it essentially raises the following overarching issue: ‘Does Community law preclude national legislation that enables incumbent providers of national television broadcast services to continue to broadcast over radio frequencies, thereby blocking the release of radio frequencies for new entrants who have obtained a right to provide the same services?’ I shall address this question with reference to Article 49 EC (22) and the common regulatory framework for electronic communications networks and services. (23)

29. It might be argued that, rearticulated in this way, the reference for a preliminary ruling none the less founders on the rock of inadmissibility in so far as Article 49 EC is concerned, because the facts at issue in the main proceedings appear to have no cross‑border implications. However, that argument is not convincing.

30. In Guimont (24) as well as in Anomar and Others , (25) the Court accepted questions referred by the national court relating to the Treaty rules on free movement, although they were raised in a case that had no cross‑border element. Likewise, in Cipolla and Others , where the facts of the case were confined within Italy, the Court held that ‘a reply might none the less be useful to the national court, in particular if its national law were to require, in proceedings such as those in this case, that an Italian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation’. (26) In my opinion, this approach is warranted in the light of the spirit of cooperation between the national courts and the Court of Justice and in view of the need to avoid the application of national law in combination with the application of Community law bringing about adverse treatment of a Member State’s own nationals. (27) Therefore, the Court should, also in the present case, provide an interpretation of Article 49 EC.

IV – Assessment

31. Member States are not obliged under the Treaty to privatise particular sectors of the market. In principle, the Treaty allows them to maintain State monopolies or public ownership of certain companies. (28) Nevertheless, it does not entitle them selectively to curtail the access of market operators to certain economic sectors once those sectors have been privatised. (29)

32. As a consequence, Community law usually does not grant operators a right to operate in a particular sector. However, the Treaty precludes limitations that would make it more difficult for operators in other Member States than for domestic operators to gain access to the national market. (30) Under the free movement rules, any Member State measure which would, actually or potentially, have such an effect, can be upheld only if the measure is suitable and necessary for the pursuit of a legitimate public interest and if the disparate impact on domestic operators and operators in other Member States is proportionate to objective differences between those operators. (31)

33. National measures which limit the number of operators in a particular market sector are liable to restrict free movement, since such measures carry the risk that they may solidify domestic market structures and protect the position of operators who have obtained a stronghold in that sector. Such operators, moreover, are likely to be domestic operators. Restrictions on the number of operators in a sector of the national market must therefore be justified.

34. As the judgment in Placanica illustrates, it is possible for a licensing system which limits the total number of operators in the national territory to be justified in the light of considerations of public interest. (32) Thus, a national limit on the total number of operators in a particular market sector for services could, in principle, be held permissible under Article 49 EC. However, that would require not only a legitimate reason for limiting the number of operators, but also a selection process which excludes arbitrary discrimination by providing sufficient guarantees that the right to operate is awarded on the basis of objective criteria. Therefore, when a Member State grants such a right, it must do so pursuant to transparent and non‑discriminatory procedures. The purpose of this requirement is to ensure that operators throughout the Community have equal opportunities to gain access to any part of the internal market.

35. The same reasoning underpins the Community rules governing the procedures for the award of public contracts and concessions. Those procedures are governed by the principles of non‑discrimination and transparency. In certain fields, secondary legislation fleshes out those principles and lays down specific public procurement rules. (33) However, even with regard to contracts that fall outside the scope of those harmonised rules, the Court has held that Member States must respect the principles of non‑discrimination and transparency by virtue of primary Community law. (34)

36. The same holds true in a situation where a Member State awards, to a limited number of private operators, the right to provide national television broadcasting services by radio frequency. Member States may want to restrict access to that particular market, thus hindering the freedom to provide services. The restriction may be justified on grounds of public policy if it is suitable and necessary in order to reduce the risk of harmful radio interference, unless the restriction results in arbitrary discrimination. Consequently, the tender procedure for awarding rights to provide national broadcasting services must, by virtue of Article 49 EC, comply with the principle of non‑discrimination and the ensuing duty of transparency.

37. These principles also occupy an important position in the common regulatory framework for electronic communications networks and services. (35) The common framework, which the Member States were under a duty to implement by 25 July 2003, sets out rules for the management of radio frequencies and the procedure for limiting the rights of use of those frequencies. Article 9(1) of the Framework Directive provides that ‘Member States shall ensure that the allocation and assignment of ... radio frequencies by national regulatory authorities are based on objective, transparent, non‑discriminatory and proportionate criteria.’ Likewise, Article 7(3) of the Authorisation Directive provides that ‘where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non‑discriminatory and proportionate.’ Thus, the common regulatory framework expands on principles that flow from the Treaty.

38. Respect for these principles naturally entails that Member States must follow through on the decision to grant operating licences to those operators who have been selected pursuant to transparent, non‑discriminatory procedures. It would negate the very purpose of those procedures if a Member State were to fail to respect their outcome and, instead, allow incumbent p rivate operators to occupy the market indefinitely, thus frustrating the application of the rules on free movement. As the Commission rightly stated in its communication on concessions, ‘the principle of equality of treatment requires not only that conditions of access to an economic activity be non‑discriminatory, but also that public authorities take all the measures required to ensure the exercise of this activity.’ (36) Accordingly, as regards the award of licences for national television broadcasting by private operators, Community law requires that transparent and non‑discriminatory selection procedures be put in place and, furthermore, that full effect be given to the outcome of those procedures.

39. It is all the more imperative that these requirements be met in a situation such as the one at issue in the main proceedings, where the public tender procedure for broadcasting rights was conducted to assure pluralism of the media. The part often played by the media as editors of the public sphere (37) is vital to the promotion and protection of an open and inclusive society in which different ideas of the common good are presented and discussed. In this regard, the European Court of Human Rights has stressed that the fundamental role of freedom of expression in a democratic society, in particular where it serves to impart information and ideas to the public, ‘cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor’. (38) Accordingly, the application of Community law in the area of national broadcasting services is guided by the principle of pluralism and, moreover, assumes special significance where it strengthens the protection of that principle. (39)

40. It follows that national courts, which have a duty to ensure the effective application of Community law, must closely scrutinise the reasons given by a Member State for seeking to delay the allocation of frequencies to an operator who has obtained national broadcasting rights through a public tendering procedure, and, if necessary, order appropriate remedies to ensure that those rights do not remain illusory.

41. The rules and conditions for obtaining legal redress before national courts are, in principle, a matter of domestic law. (40) However, it is worth emphasising that where domestic rules do not make an effective remedy available, Community law requires national courts to grant such a remedy none the less, in order to avoid a situation in which ‘the full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened’. (41)

42. The Commission pointed out, in its written observations, that account would have to be taken of the legitimate expectations and the right to property of the incumbent operators . It is impossible to explore this issue in depth on the basis of the information given to the Court in the present proceedings. I agree with the view that, in the application of Community law, the principle of legitimate expectations and the right to property have to be respected as general principles of law. However, while compliance with these principles might require the State to compensate the incumbent operators, it does not necessarily justify the continuance of a situation in which the rights of new entrants are rendered nugatory in the face of the entrenched rights of the incumbents. (42)

V – Conclusion

43. For the reasons given above, I am of the opinion that the questions referred by the Consiglio di Stato should be answered as follows:

Article 49 EC requires that the award of a limited number of licences for national television broadcasting by private operators takes place pursuant to transparent and non‑discriminatory selection procedures and, furthermore, that full effect be given to the outcome of those procedures.

National courts must closely scrutinise the reasons given by a Member State for seeking to delay the allocation of frequencies to an operator who has thus obtained national broadcasting rights, and, if necessary, order appropriate remedies to ensure that those rights do not remain illusory.

(1) .

(2) – GURI No 185 of 9 August 1990, Ordinary Supplement No 53.

(3) – GURI No 177 of 31 July 1997, Ordinary Supplement No 154.

(4) – GURI No 104 of 5 May 2004, Ordinary Supplement No 82 .

(5) – Sentenza 5‑7 December 1994, No 420/1994.

(6) – GURI No 70 of 24 March 2001.

(7) – Sentenza 20 November 2002, No 466/2002.

(8) – GURI No 300 of 29 December 2003.

(9) – GURI No 47 of 26 February 2004.

(10) – This appears to be a mistake: the Decree‑law in question was in fact converted into Law No 43/2004 of 24 February 2004.

(11) – See, for example, order in Case C‑328/04 Vajnai [2005] ECR I‑8577; Case C‑299/95 Kremzow [1997] ECR I‑2629; Case C‑159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I‑4685; and Case 12/86 Demirel [1987] ECR 3719.

(12) – Case C‑168/91 [1993] ECR I‑1191, at paragraph 46.

(13) – Article 49 EU.

(14) – See, for example, Case C‑260/89 ERT [1991] ECR I‑2925; Case C‑60/00 Carpenter [2002] ECR I‑6279; and Case C‑105/03 Pupino [2005] ECR I‑5285. The characterisation by the Court of fundamental rights as ‘an integral part of the general principles of law, the observance of which it ensures’ stems back from Case 4/73 Nold [1974] ECR 491, paragraph 13; Case 44/79 Hauer [1979] ECR 3727, paragraph 15; and Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 4. For good measure, it should be noted that these last three cases concerned the obligation of Community institutions to respect fundamental rights.

(15) – See, in particular, Case 5/88 Wachauf [1989] ECR 2609; ERT , cited in footnote 14; Case C‑71/02 Karner [2004] ECR I‑3025; and Pupino , cited in footnote 14.

(16) – See, for instance, Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24, and Case C‑151/02 Jaeger [2003] ECR I‑8389, paragraph 43.

(17) – See, to that effect, Case 149/82 Robards [1983] ECR 171, paragraph 19; Case C‑83/91 Meilicke [1992] ECR I‑4871, paragraph 25; and Case C‑451/99 Cura Anlagen [2002] ECR I‑3193, paragraph 26.

(18) – See, for instance, Case C‑295/04 Manfredi [2006] ECR I‑6619, paragraph 27, and Case C‑138/05 Stichting Zuid‑Hollandse Milieufederatie [2006] ECR I‑8339, paragraph 30.

(19) – Joined Cases C‑320/90, C‑321/90 and C‑322/90 Telemarsicabruzzo [1993] ECR I‑393, paragraph 7. See also Joined Cases C‑94/04 and C-202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25; Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 39; and Case C‑466/04 Acereda Herrera [2006] ECR I‑5341, paragraph 48.

(20) – See, for instance, Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 39; Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 127; and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 23.

(21) – See also, for instance, Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraphs 25 to 29.

(22) – It might be argued that Article 43 EC is also of relevance. However, I do not consider it necessary to examine the present case under Article 43 EC as well as under Article 49 EC, since both, in my view, would lead to the same result.

(23) – 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). See also 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); and 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).

(24) – Case C‑448/98 [2000] ECR I‑10663, paragraphs 22 to 23.

(25) – Case C‑6/01 [2003] ECR I‑8621, paragraphs 39 to 41.

(26) – Cited in footnote 19, paragraph 30. See also Servizi Ausiliari Dottori Commercialisti , cited in footnote 20, paragraph 29. The Court essentially took the same approach in Case C‑254/98 TK‑Heimdienst [2000] ECR I‑151.

(27) – See also points 121 to 154 of the Opinion of Advocate General Sharpston in Case C‑212/06 Gouvernement de la Communauté française and Gouvernement wallon , currently pending before this Court, and my own Opinion in Case C‑72/03 Carbonati Apuani [2004] ECR I‑8027, points 61 to 63.

(28) – See Articles 31 and 86(1) EC and, for instance, Case C‑170/04 Rosengren and Others [2007] ECR I‑0000; Case C‑189/95 Franzén [1997] ECR I‑5909; and Case C‑124/97 Läärä and Others [1999] ECR I‑6067.

(29) – See point 26 of my Opinion in Joined Cases C‑463/04 and C‑464/04 Federconsumatori and Others , currently pending before this Court.

(30) – See, for instance, Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile [2005] ECR I‑7723, paragraphs 31 to 33.

(31) – See, for instance, Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887 and my Opinion in Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171.

(32) – Joined Cases C‑338/04, C-359/04 and C-360/04 [2007] ECR I‑0000, paragraph 53. See also the judgment of the EFTA Court of 30 May 2007 in Case E‑3/06 Ladbrokes , paragraphs 40 to 48.

(33) – Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), last amended by Council Directive 2006/97/EC of 20 November 2006 (OJ 2006 L 363, p. 107); Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1), last amended by Council Directive 2006/97/EC of 20 November 2006 (OJ 2006 L 363, p. 107).

(34) – Case C‑410/04 ANAV [2006] ECR I‑3303, paragraph 21; Case C‑231/03 Coname [2005] ECR I‑7287, paragraph 17; Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraphs 48 and 49; Case C‑324/98 Telaustria [2000] ECR I‑10745, paragraph 62. See also Commission interpretative communication of 23 June 2006 on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 2006 C 179, p. 2).

(35) – See footnote 22.

(36) – Commission interpretative communication on concessions under Community law (OJ 2000 C 121, p. 2).

(37) – Cf. Pettit, P., Republicanism, A Theory of Freedom and Government , Oxford University Press, Oxford, 1997, p. 168.

(38) – ECHR, Judgment of 24 November 1993, Informationsverein Lentia and Others v Austria , Series A, no. 276, § 38.

(39) – In that respect, the present case is markedly different from Case C‑353/89 Commission v Netherlands [1991] ECR I‑4069, in which protection of the principle of pluralism was put forward as a reason to derogate from the rules on free movement, because, so it was argued, the application of those rules would otherwise have undermined, not strengthened, efforts to ensure pluralism of the media. See also Case C‑368/95 Familiapress [1997] ECR I‑3689.

(40) – See, for instance, Joined Cases C‑430/93 and C‑431/93 Van Schijndel and Van Veen [1995] ECR I‑4705, paragraph 17.

(41) – Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 33. See also Case C‑213/89 Factortame and Others [1990] ECR I‑2433, paragraph 21, and Case C‑271/91 Marshall [1993] ECR I‑4367, paragraphs 22 and 30 to 31.

(42) – See, to the same effect, Case C‑503/04 Commission v Germany [2007] ECR I‑0000.