OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 18 December 2019 ( 1 )

Case C‑719/18

Vivendi SA

v

Autorità per le Garanzie nelle Comunicazioni,

intervener:

Mediaset SpA

(Request for a preliminary ruling

from the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy))

(Reference for a preliminary ruling – Telecommunications – Freedom of establishment – Free movement of capital – Articles 49 and 63 TFEU – Directive 2002/21/EC – National legislation countering dominant positions – Calculation of revenues earned in the electronic communications sector and in the Integrated Communications System – Limitation of the electronic communications sector to markets forming the subject of ex ante regulation – Accounting for the revenues of affiliated companies – Differentiation of revenue thresholds as between companies active in the electronic communications sector and other operators – Article 11 of the Charter – Media freedom and pluralism)

1. In the interests of safeguarding information pluralism, Italian law imposes certain restrictions on undertakings operating in the audiovisual and radio media sector that prevent them from holding a dominant position in that sector.

2. Those restrictions include prohibiting an undertaking from earning revenues accounting for more than 20% of the total revenues in the ‘Integrated Communications System’ (‘the SIC’). ( 2 ) That percentage drops to 10% in a case where that undertaking simultaneously holds a share of more than 40% of the total revenues in the electronic communications sector.

3. In this case, the Autorità per le Garanzie nelle Comunicazioni (Italian Communications Regulator; ‘AGCom’), in application of the relevant national provisions, stated that a French media company (Vivendi SA; ‘Vivendi’) had infringed those provisions by acquiring a substantial stake in the capital of an Italian company operating in the same sector (Mediaset Italia SpA; ‘Mediaset’). Vivendi held a prominent position in the Italian electronic communications sector owing to its controlling interest in Telecom Italia SpA (‘TIM’).

4. The court called upon to rule on the action brought by Vivendi against AGCom’s decision has escalated its doubts about the compatibility of the national law with EU law in this regard to the Court of Justice.

I. Legal framework

A. EU law

1. Directive 2002/21/EC ( 3 )

5. Article 14 (‘Undertakings with significant market power’) states: ‘1. Where the Specific Directives require national regulatory authorities to determine whether operators have significant market power in accordance with the procedure referred to in Article 16, paragraphs 2 and 3 of this Article shall apply. 2. An undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers. In particular, national regulatory authorities shall, when assessing whether two or more undertakings are in a joint dominant position in a market, act in accordance with Community law and take into the utmost account the guidelines on market analysis and the assessment of significant market power published by the Commission pursuant to Article 15. Criteria to be used in making such an assessment are set out in Annex II. 3. Where an undertaking has significant market power on a specific market (the first market), it may also be designated as having significant market power on a closely related market (the second market), where the links between the two markets are such as to allow the market power held in the first market to be leveraged into the second market, thereby strengthening the market power of the undertaking. Consequently, remedies aimed at preventing such leverage may be applied in the second market pursuant to Articles 9, 10, 11 and 13 of Directive 2002/19/EC (Access Directive), and where such remedies prove to be insufficient, remedies pursuant to Article 17 of Directive 2002/22/EC (Universal Service Directive) may be imposed.’

6. Article 15 (‘Procedure for the identification and definition of markets’) provides: ‘1. After public consultation including with national regulatory authorities and taking the utmost account of the opinion of BEREC, the Commission shall, in accordance with the advisory procedure referred to in Article 22(2), adopt a Recommendation on Relevant Product and Service Markets (the Recommendation). The Recommendation shall identify those product and service markets within the electronic communications sector the characteristics of which may be such as to justify the imposition of regulatory obligations set out in the Specific Directives, without prejudice to markets that may be defined in specific cases under competition law. The Commission shall define markets in accordance with the principles of competition law. The Commission shall regularly review the recommendation. 2. The Commission shall publish, at the latest on the date of entry into force of this Directive, guidelines for market analysis and the assessment of significant market power (hereinafter “the guidelines”) which shall be in accordance with the principles of competition law. 3. National regulatory authorities shall, taking the utmost account of the Recommendation and the Guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles of competition law. National regulatory authorities shall follow the procedures referred to in Articles 6 and 7 before defining the markets that differ from those defined in the Recommendation. 4. After consultation including with national regulatory authorities the Commission may, taking the utmost account of the opinion of BEREC, adopt a Decision identifying transnational markets, acting in accordance with the regulatory procedure with scrutiny referred to in Article 22(3).’

7. Article 16 (‘Market analysis procedure’) states: ‘1. National regulatory authorities shall carry out an analysis of the relevant markets taking into account the markets identified in the Recommendation, and taking the utmost account of the Guidelines. Member States shall ensure that this analysis is carried out, where appropriate, in collaboration with the national competition authorities. 2. Where a national regulatory authority is required under paragraphs 3 or 4 of this Article, Article 17 of Directive 2002/22/EC (Universal Service Directive), or Article 8 of Directive 2002/19/EC (Access Directive) to determine whether to impose, maintain, amend or withdraw obligations on undertakings, it shall determine on the basis of its market analysis referred to in paragraph 1 of this Article whether a relevant market is effectively competitive. 3. Where a national regulatory authority concludes that the market is effectively competitive, it shall not impose or maintain any of the specific regulatory obligations referred to in paragraph 2 of this Article. In cases where sector specific regulatory obligations already exist, it shall withdraw such obligations placed on undertakings in that relevant market. An appropriate period of notice shall be given to parties affected by such a withdrawal of obligations. 4. Where a national regulatory authority determines that a relevant market is not effectively competitive, it shall identify undertakings which individually or jointly have a significant market power on that market in accordance with Article 14 and the national regulatory authority shall on such undertakings impose appropriate specific regulatory obligations referred to in paragraph 2 of this Article or maintain or amend such obligations where they already exist. 5. In the case of transnational markets identified in the Decision referred to in Article 15(4), the national regulatory authorities concerned shall jointly conduct the market analysis taking the utmost account of the Guidelines and, in a concerted fashion, shall decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in paragraph 2 of this Article. 6. Measures taken according to the provisions of paragraphs 3 and 4 shall be subject to the procedures referred to in Articles 6 and 7. …

2. Directive 2010/13/EU ( 4 )

8. Recitals 5, 8 and 34 of Directive 2010/13/EU read: ‘(5) Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy – in particular by ensuring freedom of information, diversity of opinion and media pluralism – education and culture justifies the application of specific rules to these services. … (8) It is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole. … (34) In order to promote a strong, competitive and integrated European audiovisual industry and enhance media pluralism throughout the Union, only one Member State should have jurisdiction over an audiovisual media service provider and pluralism of information should be a fundamental principle of the Union.’

9. Article 1(1) provides: ‘1. For the purposes of this Directive, the following definitions shall apply: (a) “audiovisual media service” means: (i) a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC. Such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph; (ii) audiovisual commercial communication;

B. National law

1. Decreto legislativo del 31 luglio 2005, n. 177, recante il «Testo unico dei servizi di media audiovisivi e radiofonici» ( 5 )

10. Article 2(1)(l) describes the SIC as follows: ‘the economic sector comprising the following activities: daily and other periodical press; yearbook and electronic publications, including via the internet; radio and audiovisual media services; cinema; outdoor advertising; product and service communication initiatives; sponsorship’.

11. According to Article 43 (‘Dominant positions within the Integrated Communications System’): ‘1. Entities active in the Integrated Communications System shall notify the Regulator of agreements and concentrations so that it can verify compliance with the principles set out in paragraphs 7, 8, 9, 10, 11 and 12, in accordance with the procedures laid down in the ad hoc regulations which it will itself have adopted. 2. Acting at the request of an interested party or of its own motion, the Regulator, at regular intervals, shall, after defining the market in accordance with the principles laid down in Articles 15 and 16 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002, verify that no dominant position is present either in the Integrated Communications System or on its constituent markets, and that the limits laid down in paragraphs 7, 8, 9, 10, 11 and 12 are being observed, taking into consideration, inter alia, in addition to revenues, the level of competition within the system, barriers to entering that system, the undertaking’s economic efficiency ratios and the quantitative indices regarding the broadcasting of radio and television programmes, publications and cinematic or phonographic works. … 9. Without prejudice to the prohibition on the creation of dominant positions within the individual markets comprising the Integrated Communications System, persons required to be entered in the Register of Communications Operators established in accordance with Article 1(6)(a), point 5, of Law No 249 of 31 July 1997, may not, either directly or indirectly, through controlled or affiliated companies within the meaning of paragraphs 14 and 15, earn revenues accounting for more than 20% of the total revenues in the Integrated Communications System. … 11. Undertakings, whether acting in their own right or through controlled or affiliated companies, whose revenues in the electronic communications sector as defined in Article 18 of Legislative Decree No 259 of 1 August 2003 account for more than 40% of the total revenues in that sector may not earn in the Integrated Communications System revenues accounting for more than 10% of that system. … 14. For the purposes of this Single Text, there is control, in particular as regards entities other than companies, in the cases provided for in Article 2359(1) and (2) of the Civil Code’.

2. Civil Code

12. Article 2359 provides: ‘The following shall be regarded as controlled companies: (1) companies in which another company holds the majority of the voting rights that may be exercised in ordinary shareholders’ meetings; (2) companies in which another company holds sufficient voting rights to exercise a dominant influence in ordinary shareholders’ meetings; (3) companies which are under the dominant influence of another company by virtue of specific contractual links with that company. … Companies on which another company exercises a considerable influence shall be regarded as affiliated companies. Such influence shall be presumed to be present where the other company can exercise at least one fifth of the voting rights, or one tenth if it holds shares listed on a regulated market’.

II. Dispute in the main proceedings and questions referred for a preliminary ruling

13. Vivendi, a company governed by French law that is entered in the Paris Company Registry, is the parent company of a group active in the media sector and the audiovisual content creation and distribution sector.

14. Vivendi holds 23.94% of the capital of TIM, a company that has been under its control ( 6 ) since the shareholders’ meeting of 4 May 2017, at which it acquired a majority representation on the board of directors. ( 7 )

15. On 8 April 2016, Vivendi, Mediaset and Reti Televisive Italiane SpA entered into a strategic collaboration agreement whereby Vivendi acquired 3.5% of the share capital of Mediaset and 100% of the share capital of Mediaset Premium SpA, surrendering 3.5% of its own share capital in return.

16. Following a number of differences of opinion over that agreement, Vivendi, in December 2016, began a hostile campaign to acquire shares in Mediaset. By 22 December 2016, Vivendi already held 28.8% of Mediaset’s share capital, equivalent to 29.94% of its voting rights. That qualified minority shareholding did not, however, allow it to exercise control over Mediaset, which remained under the control of the Fininvest group. ( 8 )

17. On 20 December 2016, Mediaset complained to AGCom that, in acquiring those shares, Vivendi had infringed Article 43(11) of the TUSMAR.

18. By decision No 178/17/CONS of 18 April 2017, ( 9 ) AGCom stated that, as a result of the aforementioned shareholdings, Vivendi had infringed Article 43(11) of the TUSMAR and ordered it to bring that infringement to an end within a period of 12 months.

19. Vivendi discharged AGCom’s order and, on 6 April 2018, transferred to an independent company (Simon Fiduciaria SpA) ownership of 19.19% of the shares in Mediaset (19.95% of the voting rights). Vivendi’s remaining direct shareholding in Mediaset thus accounted for less than 10% of the voting rights exercisable at the latter’s ordinary shareholders’ meetings.

20. Vivendi nonetheless appealed AGCom’s decision to the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy), seeking to have it annulled.

21. In the course of that dispute, the court seised of it has referred the following questions to the Court of Justice for a preliminary ruling: ‘(1) While Member States have the ability to investigate when undertakings have a dominant position (and to impose specific obligations on those undertakings as a result), is Article 43(11) of Legislative Decree No 177 of 31 July 2005, in the version in force on the date of adoption of the contested decision, according to which “undertakings, including through subsidiaries or affiliates, whose revenues in the electronic communications sector, as defined by Article 18 of Legislative Decree No 259 of 1 August 2003, exceed 40 per cent of the total revenues in that sector, may not earn, within the Integrated Communications System, revenues exceeding 10 per cent of that system”, incompatible with EU law and, in particular, with the principle of free movement of capital laid down in Article 63 TFEU? This question is asked in so far as that provision, by reference to Article 18 of the Codice delle comunicazioni elettroniche (Electronic Communications Code), restricts the sector in question to the markets that are susceptible to ex ante regulation, regardless of what commonly happens, which is that information (the pluralism of which the rule is designed to protect) is increasingly conveyed by the use of the internet, personal computers and mobile telephony, which is sufficient to make it unreasonable to exclude from that sector, in particular, mobile telephone retail services, simply because they operate entirely competitively. This question is also asked in the light of the fact that, for the purposes of applying the aforementioned Article 43(11) specifically in the course of the present proceedings, AGCom has defined the limits of the electronic communications sector by taking into consideration only the markets where at least one analysis has been carried out since the entry into force of the Electronic Communications Code, that is, from 2003 to date, and with revenues resulting from the last useful assessment, carried out in 2015? (2) Do the principles of freedom of establishment and freedom to provide services laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) and Articles 15 and 16 of Directive 2002/21/EC [on a common regulatory framework for electronic communications networks and services] aimed at safeguarding pluralism and freedom of expression, together with the EU law principle of proportionality, preclude the application of national legislation concerning public broadcasting and audiovisual and radio media services, such as that of Italy, contained in Article 43(11) and (14) [of Legislative Decree No 177/2005], according to which the revenues relevant for determining the second threshold of 10% are also applicable to undertakings that are not subsidiaries or under a dominant influence, but are merely“affiliates” within the meaning of Article 2359 of the Codice Civile (Civil Code) (referred to in Article 43(14)), even if it is not possible to exert any influence on the information being broadcast by those undertakings? (3) Do the principles of freedom of establishment and freedom to provide services laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) and Articles 15 and 16 of Directive 2002/21/EC, together with the principles on safeguarding pluralism of information sources and competition in the broadcasting sector laid down in Directive 2010/13/EU concerning audiovisual media services and in Directive 2002/21/EC, preclude national legislation such as Legislative Decree No 177 of 31 July 2005 which, in Article 43(9) and (11) thereof, sets very different thresholds (20% and 10% respectively) for “persons required to be entered in the Register of Communications Operators established under Article 1(6)(a)(5) of Law No 249 of 31 July 1997” (that is, persons who have received a concession or authorisation under the legislation in force, from the Communications Regulatory Authority or from other competent administrative authorities, and concessionaires of advertising, however transmitted, publishers, and so on, referred to in Article 43(9)) and for undertakings operating in the electronic communications sector, as defined above (covered by Article 43(11))?’

22. Written observations have been lodged by Vivendi, Mediaset, the Italian Government and the Commission, all of which took part in the hearing held on 9 October 2019.

III. Analysis

A. Admissibility of the questions referred for preliminary ruling

23. The Italian Government takes the view that the first question is hypothetical, given that, because of its controlling interest in TIM, Vivendi would have accounted for 45.9% of the revenues in the electronic communications sector in the reference year even if that market had been defined more extensively. It would therefore have exceeded the 40% of revenue threshold in any event.

24. The plea of inadmissibility cannot be upheld given that what the referring court is calling into question is precisely whether the percentage laid down as a means of restricting access to the SIC for undertakings present in the electronic communications sector is compatible with EU law.

25. Mediaset considers that the referring court’s questions are inadmissible inasmuch as they do not provide a clear and coherent description of the national legal framework or explain the relevance to the resolution of the dispute of some of the provisions of EU law which the referring court cites.

26. This plea cannot succeed either, since questions referred for a preliminary ruling on EU law enjoy a presumption of relevance, which has not been rebutted in this case. The Court may refuse to give a ruling on a question referred by a national court only where it is quite obvious that the interpretation of a rule of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 10 )

27. None of those circumstances are present here. Even though the order for reference mentions certain provisions of EU law without explaining their relevance, it contains sufficient material to provide an understanding of the legal issues raised in connection with the possible incompatibility of the Italian legislation with the provisions of EU law. The Court is therefore in a position to give a useful answer to the referring court.

B. Relevant provisions of EU law

1. Provisions of the TFEU

28. Although the three questions referred for a preliminary ruling relate to the same Italian law, they are concerned with the compatibility of various aspects of that law, as they have been interpreted in this case, with a number of provisions of the TFEU. In particular, the first refers to Article 63 TFEU (free movement of capital), while the other two concern Articles 49 TFEU (right of establishment) and 56 TFEU (freedom to provide services). ( 11 )

29. With regard to the last-mentioned provision, it is sufficient to say that Article 56 TFEU is not applicable to this case because there is no cross-border supply of services in the dispute in the main proceedings.

30. On the other hand, the Italian legislation may, in principle, be at odds both with the freedom of establishment (Article 49 TFEU) and with the free movement of capital (Article 63 TFEU).

31. According to the case-law of the Court, in order to determine whether national legislation falls within the scope of one or other of those freedoms, it is necessary to take into consideration the purpose of that legislation, which is to say that: ( 12 ) – A national provision intended to apply only to those shareholdings which enable the holder to exert a definite influence on a company’s decisions and to determine its activities will be caught by Article 49 TFEU. – On the other hand, national provisions which apply to shareholdings acquired solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking will be governed by Article 63 TFEU. ( 13 )

32. The information contained in the documents before the Court support the inference that Vivendi’s acquisition of shares in, and taking control of, TIM involve the exercise of the right of establishment. Conversely, Vivendi’s acquisition of a significant proportion of Mediaset’s shares would fall either within the free movement of capital (if Vivendi’s intention was simply to make a financial investment) or with the freedom of establishment (if Vivendi sought to intervene in Mediaset’s management).

33. The Italian legislation imposes restrictions on both freedoms, since what prevents Vivendi from making a substantial investment in Mediaset’s shares is its equity interest in, and subsequent control of, TIM, a company with a large share of the Italian electronic communications market. ( 14 )

34. Although the result of examining the Italian legislation in the light of the requirements of the free movement of capital would not be very different from that of examining it in the light of the requirements associated with the freedom of establishment, given the alignment between the Court’s lines of case-law concerning the two freedoms, I am of the opinion that, in view of the characteristics of the dispute in the main proceedings, it is advisable to examine that legislation from the point of view of its compatibility with the rules on the right of establishment. ( 15 )

35. The backdrop to the dispute between Vivendi and Mediaset is the French conglomerate’s intention to intervene in Mediaset’s management ( 16 ) and thereby to gain a significant share of the Italian media market. Vivendi’s aspiration, it would seem, is not merely to make a financial investment by acquiring shares in Mediaset for the sole purpose of securing a profit.

36. If that is the case, then what we are dealing with is the exercise of freedom of establishment by a French undertaking on the Italian media market and AGCom’s obstruction of the exercise of that freedom through its application of the national legislation. What Vivendi appears to have sought to achieve in acquiring 28.8% of Mediaset’s share capital, thus gaining 29.94% of the voting rights, is, as I have said, to exert a definite influence on Mediaset’s management and to determine to some extent the activities carried on by that undertaking, within the meaning of the Court’s case-law.

2. Directives on electronic communications and audiovisual media services

37. The referring court mentions both the Framework Directive (in particular Articles 15 and 16 thereof) and Directive 2010/13 on audiovisual media services.

38. According to settled case-law of the Court, in cases of exhaustive harmonisation, directives have preferential application and displace the use of provisions of primary law (in this instance, those concerning freedom of movement within the internal market). Where harmonising directives are not exhaustive, they may be applied in combination with primary law.

39. In this case, it falls to be determined, therefore, whether the Framework Directive and Directive 2010/13 are the only points of reference for answering the questions referred for a preliminary ruling or whether, on the other hand, the provisions of primary law (in particular, Article 49 TFEU) are applicable first and foremost, even if account is taken of certain provisions from those two directives.

40. In my opinion, both directives harmonise this field in a non-exhaustive manner, leaving to the Member States a broad margin of discretion to adopt of national decisions. Those national decisions must be assessed in the light of Article 49 TFEU and the Court’s case-law interpreting that article.

41. In particular, the Framework Directive defines the functions assigned to the national regulatory authorities (‘NRAs’). Prominent among those functions (Article 16) is the analysis of relevant markets, on the basis of which the NRAs ( 17 ) can impose specific obligations, also known as ‘corrective measures’, on operators with significant power on any of those markets. ( 18 ) These, therefore, are regulatory functions in the exercise of which the NRAs have a broad discretion enabling them to determine on a case-by-case basis the need to regulate a particular market, ( 19 ) possibly with assistance from the Commission. ( 20 )

42. While AGCom’s application of Article 43(11) of the TUSMAR in relation to Vivendi might in principle fall within the scope of the Framework Directive, the margin of discretion that that directive leaves to the NRAs means that the potential incompatibility of that provision must be examined in the light of the requirements of Article 49 TFEU.

43. As regards Directive 2010/13, the Court has stated that that directive does not apply to a national provision which, in pursuit of an objective of general interest, regulates certain aspects of the broadcasting or distribution of audiovisual media services, unless it introduces a second control of television broadcasts in addition to that which the broadcasting Member State is required to carry out. ( 21 )

44. As the Italian provision (that is to say, Article 43 of the TUSMAR, inasmuch as it prohibits an undertaking with revenues accounting for 40% of the electronic communications sector from exceeding the threshold of 10% of the revenues in the SIC) does not impact on, or entail a second control of, broadcasts, it falls outside the scope of Directive 2010/13. Furthermore, that national provision is intended to protect media pluralism and freedom of information, which are objectives of general interest.

45. In short, the perspective from which the domestic legislation must be analysed in this case is Article 49 TFEU.

C. Restrictions on the right of establishment

46. I propose to examine the Italian legislation, as it has been interpreted in this case, from the point of view of its compatibility with Article 49 TFEU, and to give a joint answer to three questions referred for a preliminary ruling, so as to avoid repetition.

47. According to the settled case-law of the Court, that article precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that is guaranteed by the Treaty. Such restrictive effects may arise where, on account of national legislation, a company may be deterred from setting up subsidiary bodies, such as permanent establishments, in other Member States and from carrying on activities through such bodies. ( 22 )

48. The restriction which has been imposed on Vivendi, on the basis of the TUSMAR, hinders its freedom to establish itself in Italy by preventing it from exerting an influence on, and, if appropriate, taking control of, Mediaset. It is not therefore a direct hindrance of freedom of establishment that is based on nationality, but an indirect one that applies without distinction to national operators and to undertakings from other Member States.

49. The restrictive effect of the Italian legislation stems from the combination of the three factors mentioned by the referring court: – First, the use of a restricted definition of ‘electronic communications sector’ as being confined to markets amenable to ex ante regulation. – Secondly, the fact that the revenues of ‘affiliated’ (and not only ‘controlled’) companies are used to calculate market shares in the electronic communications sector and the media sector. – Finally, the establishment of differentiated thresholds (20% and 10% of the revenues in the SIC) for the acquisition of media shareholdings.

1. Restrictive definition of the electronic communications sector

50. As regards the first factor, AGCom uses a restrictive definition of the electronic communications sector that is derived from a combined reading of Article 43(11) of the TUSMAR and Article 18 of the Italian Electronic Communications Code. The fact of effectively reducing the size of the electronic communications sector in this way makes it easier for a single undertaking to reach the threshold of 40% of the revenues in that sector and thus diminishes the opportunities for that undertaking to establish itself in the media sector in Italy.

51. As I have already said, AGCom’s application of those two Italian provisions confines the electronic communications sector to markets amenable to ex ante regulation, ( 23 ) that is to say, those in respect of which it has conducted at least one analysis between the entry into force of the Electronic Communications Code (2003) and the present day, and the revenues of which are identified in the last useful assessment (2015).

52. By operating in this way, AGCom leaves markets of growing importance for the transmission of information out of the electronic communications sector, such as retail mobile telephone services, a competitive market on which no ex ante regulatory intervention by the Member States is required, the markets in other internet-related electronic communications services, and satellite broadcasting services. Together, these markets have become the main route for accessing media and it therefore makes no sense to exclude them.

53. As a result of this restricted definition of the electronic communications sector, the power exercised in that sector by an undertaking from another Member State (in this instance, Vivendi), that holds a share of the capital of an operator such as TIM, is increased and, at the same time, the opportunities for that undertaking to participate in the audiovisual media sector are diminished, thus making it difficult for it to establish itself in Italy.

2. The impact of the ‘affiliation’ between companies

54. As regards the second factor, for the purposes of determining whether a particular undertaking holds a dominant position on markets, AGCom takes into account the revenues not only of the companies ‘controlled’ by it, but also of the ‘affiliated’ companies on which it exerts a ‘considerable influence’, in accordance with Article 2359(3) of the Italian Civil Code.

55. In this instance, Vivendi’s shareholding in Mediaset has not effectively allowed the former to exert a considerable influence on the latter, ( 24 ) because the latter is under the control of the Fininvest group, which dictates the course of action followed by Mediaset and with which Vivendi is in dispute. That, however, is an issue of fact that the referring court alone is able to dispose of with certainty.

56. If that were the case, Vivendi’s freedom of establishment in Italy would be adversely affected by the application of the provision at issue, since the fact of attributing to it the revenues of ‘affiliated’ companies (like Mediaset) whose commercial strategy it is not in a position to exert an influence over would diminish the opportunity for it to establish itself in the SIC. ( 25 )

3. The dual threshold for revenues in the audiovisual media sector

57. Vivendi’s freedom of establishment in Italy is also restricted as a result of the application to it of a more stringent prohibition on the earning of revenues in the SIC than that imposed on normal media operators.

58. Under the national legislation, those operators ( 26 ) are allowed to earn up to 20% of the revenues in the SIC. Undertakings that account for more than 40% of the electronic communications sector, on the other hand, are authorised to secure only 10% of the revenues in the same SIC. In practice, the latter provision applies only to TIM, which is controlled by Vivendi, since it alone has revenues accounting for more than 40% of the electronic communications sector.

59. The establishment of a maximum revenue threshold for the pursuit of business activity in the media sector in Italy entails in and of itself a restriction on the freedom of undertakings from other Member States to establish themselves in Italy. That restriction is made more serious by the fact that the threshold is established, as demonstrated, on a differentiated basis and is more harmful to an undertaking from another Member State that has a controlling interest in an Italian company.

60. In conclusion, the freedom of establishment protected by Article 49 TFEU is adversely affected by virtue of the deterrent effect of the Italian legislation, which restricts – in the manner described – the possibility for undertakings from other Member States to gain entry to the Italian media sector.

61. That restriction may, however, be based on legitimate grounds of justification, to which I shall turn right now.

D. Justification of the restriction

62. According to the settled case-law of the Court, freedom of establishment under Article 49 TFEU may be restricted only by rules which are justified by the exceptions expressly provided for in Article 52 TFEU (public order, public security or public health) or by overriding reasons in the public interest and which are applicable to all persons or undertakings pursuing an activity in the territory of the host Member State. Furthermore, in order to be so justified, the national legislation in question must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it. ( 27 )

63. I have already noted that the Italian legislation applies without distinction to all operators active in the electronic communications and media sectors in Italy. Consequently, it might feasibly be justified by one of the express exceptions referred to in Article 52 TFEU or by an overriding reason in the public interest.

64. Both Mediaset and the Italian authorities invoke the overriding reason in the public interest consisting in the protection of information pluralism, which is also provided for in the TUSMAR. ( 28 ) The referring court, too, is of the view that the contested legislation might be justified by the protection of information and media pluralism.

65. In accordance with Article 11(2) of the Charter of Fundamental Rights of the European Union, ‘the freedom and pluralism of the media shall be respected’. Those two components are essential to the existence of the rights of expression and information safeguarded by that article of the Charter, which is based on Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). ( 29 )

66. Protocol No 29 to the TFEU also refers to media pluralism when it states that ‘… the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism’.

67. The Framework Directive and Directive 2010/13 likewise contain references to media pluralism. It is mentioned, in particular, in recital 5 of the Framework Directive ( 30 ) and recitals 5 and 8 of Directive 2010/13. ( 31 ) The European Parliament has pointed out the importance of such pluralism for guaranteeing freedom of expression in a democratic society. ( 32 )

68. The European Court of Human Rights (‘ECtHR’) has established a material line of case-law on the importance of media pluralism in the interpretation of Article 10 ECHR. ( 33 )

69. The ECtHR has held that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. There can be no democracy without pluralism and democracy thrives on freedom of expression, and it is therefore essential to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy in itself. ( 34 )

70. The ECtHR goes on to say that, to ensure true pluralism in the audiovisual sector in a democratic society, it is not sufficient to provide for the existence of several channels or the theoretical possibility for potential operators to access the audiovisual market. It is necessary to allow effective access to the market so as to guarantee diversity of overall programme content, reflecting as far as possible the variety of opinions encountered in the society at which the programmes are aimed. ( 35 )

71. It therefore considers it to be contrary to Article 10 of the ECHR for an economic or political section of society to be able to obtain a dominant position over the audiovisual media and to exert pressure on broadcasters in order, ultimately, to restrict their editorial freedom. ( 36 ) The same is true in a case where the dominant position is held by a State broadcaster with a monopoly over available frequencies. ( 37 )

72. In the light of the foregoing items of legislation and case-law, it is understandable that the Court should have had no hesitation in classifying media pluralism as an overriding reason in the public interest, ( 38 ) the protection of which may justify the adoption of national measures that restrict freedom of establishment (and other internal market freedoms). ( 39 ) It has also pointed out its importance in a democratic society. ( 40 )

73. In principle, Article 43 of the TUSMAR is an appropriate means of attaining the objective of protecting media pluralism because it prevents a single undertaking from acquiring, in its own right or through its subsidiaries, a substantial (over 20%) share ( 41 ) of the media market. That legislation is therefore suitable for protecting the external dimension of media pluralism.

74. It might also be acceptable, given the proximity between the electronic communication services sector and the media sector, to lay down certain limits to prevent undertakings which already hold a dominant position in the former (TIM, for example, as the sector leader) from taking advantage of that fact in order to strengthen their position in the media sector. A national measure which, in these circumstances, curtails access to the media sector and prevents it from being excessively concentrated in the hands of one operator may promote information pluralism, at least ideally.

75. In addition to being suitable for doing so, however, such national legislation must not go beyond what is necessary in order to attain the objective of protecting information pluralism. In other words, it must pass the proportionality test set by the Court in its case-law. ( 42 )

E. Proportionality of the restriction

76. Although it is for the referring court to consider the proportionality of the measure under examination in relation to the aims in pursuit of which that measure was adopted, the Court may provide it with useful guidance in this regard.

77. In my opinion, it is debatable, to say the least, whether the requirement of proportionality has been fulfilled in this case, taking account of the factors that I shall set out below.

78. In the first place, in order to define the electronic communications sector, AGCom adopts a very strict interpretation of Article 43 of the TUSMAR and of Article 18 of the Electronic Communications Code, which are difficult to reconcile with Articles 15 and 16 of the Framework Directive and with the Commission’s recommendations for this sector. ( 43 )

79. As the Commission and Vivendi submit, that definition of the electronic communications markets bears no relation to the aim of guaranteeing pluralism in the related but different media sector. A definition of the full extent of the electronic communications sector as such would have to take into account all the markets present in it, not just those that require ex ante intervention because they do not exhibit a high enough degree of competition.

80. I have already said ( 44 ) that a definition of the electronic communications sector must include all markets present in that sector, in particular retail mobile telephone services, the markets in other internet-related electronic communications services, and the markets in satellite broadcasting services, which have become the preferred means of accessing the media.

81. In the second place, the proportionality requirements might not be compatible with the very low percentage of revenues (10%) in the SIC that is laid down as a ceiling for undertakings whose revenues in the electronic communications sector account for more than 40% of the total revenues in that sector.

82. It is true, as I have said, that there is a link between the two sectors concerned, given the growing convergence between electronic communications, audiovisual media services and information technologies. ( 45 ) This does not mean, however, that undertakings active in electronic communications services necessarily have an intrinsic capacity to influence the audiovisual media sector. ( 46 ) Those undertakings control the conveyance and transmission of content but not necessarily its production, which involves editorial responsibility. ( 47 ) A distinction must therefore be drawn between the regulation of transmission, on the one hand, and the regulation of content, on the other. ( 48 )

83. Accordingly, the Court has held that the directives comprising the new regulatory framework applicable to electronic communications services make a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility, since content and transmission are covered by different measures which pursue their own specific objectives. ( 49 )

84. Consequently, the control of electronic communications by an operator does not inevitably entail identical control over the content passing through its infrastructure, responsibility for which falls to the medium that produces it and is editorially responsible for it.

85. This is the premiss on which we must analyse the link, introduced in a general and abstract fashion by the Italian legislation, between possession of more than 40% of the electronic communications market and the danger to information pluralism. Its effects might be considered to be disproportionate, inasmuch as they automatically prevent any undertaking, ( 50 ) of whatever description, with a market share of that size in the former sector from earning more than 10% of the revenues in the latter (that is to say, the SIC).

86. In the third place, while the text of Article 2359 of the Civil Code on affiliated companies is in principle unobjectionable, it must not be forgotten that that provision simply establishes a presumption: that one company will exert a considerable influence on another if the former is able to exercise one fifth of the latter’s voting rights, or one tenth of those rights if it holds shares listed on a regulated market.

87. It would be disproportionate to apply that presumption, as if it were indestructible, so as to treat the situation of a ‘controlled company’ in the same way as that of an ‘affiliated company’, and thereby impose the restriction on freedom of establishment under examination here, in a case where it is safe to say, as it seems to be here, that the company (Vivendi) with a share of voting rights in another company (Mediaset) that is greater than the figures mentioned above is not effectively in a position to exert a considerable influence on the latter.

IV. Conclusion

88. In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy) as follows: The freedom of establishment protected by Article 49 TFEU precludes a national measure which, in order to preserve information pluralism, prohibits any undertaking whose revenues in the electronic communications sector make up more than 40% of the total revenues in that sector from acquiring a position accounting for more than 10% of the revenues on the media market, if: – ‘electronic communications sector’ is taken to mean only that comprising markets amenable to ex ante regulation; and – the prohibition is imposed on undertakings which are affiliated to the principal undertaking and on which the latter is not in a position to exert a considerable influence, a matter which it falls to the referring court to determine.

( 1 ) Original language: Spanish.

( 2 ) In addition to the press and electronic publications, the SIC includes radio and audiovisual services, cinema, outdoor advertising, product and service communication initiatives and sponsorship.

( 3 ) Directive 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), amended by 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).

( 4 ) Directive of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).

( 5 ) Legislative Decree No 177 of 31 July 2005 establishing the ‘Single text for audiovisual and radio media services’ (‘the TUSMAR’; GURI No. 208 of 7 September 2005).

( 6 ) By communication No 0106341 of 13 September 2017, the Italian financial markets regulator (CONSOB) stated that, ‘a seguito dell’assemblea dei soci del 4 maggio 2017 con la quale Vivendi ha nominato la maggioranza dei consiglieri di amministrazione di TIM – la medesima Vivendi esercita il controllo su TIM ai sensi degli artt. 2359, comma 1, n. 2, del codice civile e 93 TUF, nonchè ai sensi del Regolamento Consob OPC’.

( 7 ) On 30 May 2017, the Commission chose not to oppose the merger between Vivendi and Telecom Italia but to declare it compatible with the internal market (Case M.8465; OJ 2017 C 220, p. 53).

( 8 ) The Commission confirmed this in its decision of 30 May 2017 (point 49): ‘Vivendi does not jointly or solely control Mediaset in light of the following factors: (i) another industrial shareholder (Fininvest) historically holds the largest share of Mediaset’s share capital (currently amounting to 39.53% of the ordinary share capital and of 41.09% of the voting share capital), has obtained the majority of the voting rights at least in the last 6 shareholders’ meetings and has appointed the majority of the board at least in the last two terms (in 2012 and 2015); (ii) Vivendi has not appointed any members of the board of directors, which will remain in office until the approval of the financial statements for year 2017; and (iii) Vivendi does not enjoy any specific information or other rights, which materially differ from those of any other minority shareholder; and (iv) at the present, Vivendi and Mediaset are engaged in an on-going litigation, following the breaking down of the negotiations for the acquisition of Mediaset Premium in 2016 which seems, thus, to exclude commonality of interests between Vivendi and Mediaset’.

( 9 ) Delibera n. 178/17/CONS Accertamento della violazione dell’art. 43, comma 11, del decreto legislativo 31 luglio 2005, n. 177, text available on AGCom’s website at https://www.agcom.it/documents/10179/7421815/Delibera+178-17-CONS/bb20ae9f-21eb-4d39-baf9-ee3fc9d8737a?version=1.1.

( 10 ) Judgments of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 25); of 7 February 2018, American Express (C‑304/16, EU:C:2018:66, paragraph 32); and of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 27).

( 11 ) As I have already explained, the referring court does not make clear the reasons why it is uncertain about the compatibility of the Italian legislation with the provisions of the TFEU relating to the various internal market freedoms.

( 12 ) See, to that effect, judgments of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraphs 89 and 90); of 5 February 2014, Hervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2014:47, paragraph 21); of 10 April 2014, Emerging Markets Series of DFA Investment Trust Company (C‑190/12, EU:C:2014:249, paragraph 25); of 24 November 2016, SECIL (C‑464/14, EU:C:2016:896, paragraph 31); and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 53).

( 13 ) Judgments of 13 November 2012, Test Claimants in the FII Group Litigation (C‑35/11, EU:C:2012:707, paragraphs 91 and 92), and of 24 November 2016, SECIL (C‑464/14, EU:C:2016:896, paragraphs 32 and 33).

( 14 ) TIM is, as I have already said, the heir to the extinct Italian State monopoly.

( 15 ) The Court’s case-law contains examples of restrictions on the freedom of establishment and the free movement of capital that are analysed in relation to only one of those freedoms depending on the context of the disputes in the main proceedings. See, inter alia, judgments of 17 September 2009, Glaxo Wellcome (C‑182/08, EU:C:2009:559, paragraph 51 and the case-law cited), and of 6 March 2018, SEGRO and Horváth (C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 55).

( 16 ) Mediaset says as much in its observations (paragraph 10). In its Rapport annuel – Document de référence 2016 (Annual Report – 2016 Reference Document), p. 235 (available at https://www.vivendi.com/wp-content/uploads/2017/03/20170314-VIV_Vivendi-Rapport-annuel-Document-de-reference-2016.pdf), Vivendi acknowledged that ‘… the acquisition of a stake in Mediaset is of a piece with Vivendi’s desire to expand in southern Europe and its strategic ambitions as a major international group in the field of euro-centric media and content’.

( 17 ) The NRAs have regulatory powers to define, on the basis of the principles of competition law, the electronic communications markets located within their territory (Article 15(3) of the Framework Directive) and to identify operators which, whether individually or jointly, have significant power (Article 14 of the Framework Directive).

( 18 ) See, to this effect, orders of 12 December 2007, Vodafone España and Vodafone Group v Commission (T‑109/06, EU:T:2007:384, paragraphs 72 to 75), and of 9 July 2019, VodafoneZiggo Group v Commission (T‑660/18, EU:T:2019:546, paragraph 32).

( 19 ) See judgments of 15 September 2016, Koninklijke KPN and Others (C‑28/15, EU:C:2016:692, paragraph 36), and of 3 December 2009, Commission v Germany (C‑424/07, EU:C:2009:749, paragraph 61).

( 20 ) The Commission assists the NRAs and seeks to ensure the harmonised application of the regulatory framework throughout the European Union by publishing recommendations and guidelines, in particular under Article 15 of the Framework Directive, on relevant product and service markets, market analysis and the assessment of significant market power. The Commission’s role as coordinator is also apparent in the European consultation procedure set out in Articles 7 and 7a of the Framework Directive.

( 21 ) Judgments of 4 July 2019, Baltic Media Alliance (C‑622/17, EU:C:2019:566, paragraphs 73 and 74); of 22 September 2011, Mesopotamia Broadcast and Roj TV (C‑244/10 and C‑245/10, EU:C:2011:607, paragraph 50); and of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraph 34). The latter two judgments concerned Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), the predecessor to Directive 2010/13.

( 22 ) See, in particular, the judgments of 11 March 2010, Attanasio Group (C‑384/08, EU:C:2010:133, paragraphs 43 and 44); of 13 October 2011, DHL International (C‑148/10, EU:C:2011:654, paragraph 60); and of 10 May 2012, Duomo Gpa and Others (C‑357/10 to C‑359/10, EU:C:2012:283, paragraph 35).

( 23 ) Delibera n. 178/17/CONS, cited in footnote 9, pp. 27-29.

( 24 ) I refer in this regard to the statements contained in the Commission Decision of 30 May 2017, reproduced in footnote 8.

( 25 ) The application of the Italian legislation would also cause the revenues of the affiliated undertaking to be taken into account twice: Mediaset’s revenues would be taken into consideration not only for the purposes of calculating the revenues of the Italian undertaking itself, which is controlled by the Fininvest group, but also for the purposes of calculating Vivendi’s participation as a minority shareholder in Mediaset.

( 26 ) That is to say, undertakings entered in the Register of Communications Operators which hold concessions or authorisations granted by AGCom or by other competent authorities, as well as undertakings with concessions to distribute advertising, publishing undertakings and similar undertakings.

( 27 ) Judgments of 9 September 2010, Engelmann (C‑64/08, EU:C:2010:506, paragraphs 29 and 47); of 9 March 2006, Commission v Spain (C‑323/03, EU:C:2006:159, paragraph 45); and of 4 June 2002, Commission v Belgium (C‑503/99, EU:C:2002:328, paragraph 45).

( 28 ) The fundamental principles of the system of audiovisual media and radio broadcasting services which are listed in Article 3 of the TUSMAR include the ‘guarantee of freedom and pluralism in the broadcasting media’. Article 5(1)(a) of the TUSMAR states that the SIC must comply with the ‘protection of pluralism in the broadcasting media, prohibiting to that end the creation or continuation of positions harmful to pluralism …, including through controlled or affiliated entities …’.

( 29 ) For a commentary on the similarities and scant differences between those two texts, I refer to Wachsmann, A., ‘Article 11. Liberté d’expression et d’information’, in Picod, F. and Van Dooghenbroeck, S., (eds), Charte des droits fondamentaux de l’Union européenne, Bruylant, Brussels, 2018, pp. 255-271.

( 30 ) ‘The separation between the regulation of transmission and the regulation of content does not prejudice the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection’. Emphasis added.

( 31 ) Recital 5 of Directive 2010/13 states that audiovisual media services are of ‘growing importance for societies, democracy – in particular by ensuring freedom of information, diversity of opinion and media pluralism – education and culture …’. Recital 8 of that directive notes that ‘it is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole’. Emphasis added.

( 32 ) Point E of European Parliament Resolution of 3 May 2018 on media pluralism and media freedom in the European Union (2017/2209(INI)) states: ‘whereas media freedom, pluralism and independence are crucial components of the right to freedom of expression; whereas the media play an essential role in democratic society, by acting as public watchdogs, while helping to inform and empower citizens …’.

( 33 ) See the comprehensive analysis carried out by Pisillo Mazzeschi, R., ‘Diritto al pluralismo informativo nei media audiovisivi e Convenzione europea dei diritti dell’uomo’, in Pisillo Mazzeschi, R., Del Vecchio, A., Manetti, M. and Pustorino, P. (eds), Il diritto al pluralismo dell’informazione in Europa e in Italia, Rai Eri, Rome, 2012, pp. 23-99.

( 34 ) Judgments of 8 July 1986, Lingens v. Austria, CE:ECHR:1986:0708JUD000981582, § 41; of 25 May 1998, Socialist Party and Others v. Turkey, CE:ECHR:1998:0525JUD002123793, §§ 41, 45 and 47; of 17 September 2009, Manole and Others v. Moldova, CE:ECHR:2009:0917JUD001393602, §§ 95 and 96; and of 7 June 2012, Centro Europa 7 S.r.l. and di Stefano v. Italy, CE:ECHR:2012:0607JUD003843309, § 129.

( 35 ) Judgment of 7 June 2012, Centro Europa 7 S.r.l. and di Stefano v. Italy, CE:ECHR:2012:0607JUD003843309, § 130.

( 36 ) Judgment of 28 June 2001, VgT Verein gegen Tierfabriken v. Switzerland, CE:ECHR:2001:0628JUD002469994, §§ 73 and 75.

( 37 ) Judgments of 24 November 1993, Informationsverein Lentia and Others v. Austria, CE:ECHR:1993:1124JUD001391488, § 39, and of 7 June 2012, Centro Europa 7 S.r.l. and di Stefano v. Italy, CE:ECHR:2012:0607JUD003843309, § 133.

( 38 ) See the analyses of that case-law carried out by Barzanti, F., ‘La giurisprudenza della Corte di giustizia dell’Unione europea in tema di pluralismo dell’informazione: acquisizioni e prospettive’, in Pisillo Mazzeschi, R., Del Vecchio, A., Manetti, M. and Pustorino, P. (eds), Il diritto al pluralismo dell’informazione in Europa e in Italia, Rai Eri, Roma, 2012, pp. 205-229; and Cunha Rodrigues, J., ‘Le droit de l’Union et le pluralisme des médias’, in La Cour de justice de l'Union européenne sous la présidence de Vassilios Skouris (2003-2015): liber amicorum Vassilios Skouris, 2015, pp. 187-201.

( 39 ) Judgments of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, paragraph 42); of 25 July 1991, Collectieve Antennevoorziening Gouda (C‑288/89, EU:C:1991:323); and of 3 February 1993, Veronica Omroep Organisatie (C‑148/91, EU:C:1993:45).

( 40 ) See, to that effect, judgments of 22 December 2008, Kabel Deutschland Vertrieb und Service (C‑336/07, EU:C:2008:765, paragraph 33); of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 31); and of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 52). See, also, Opinion of Advocate General Kokott in Persidera (C‑112/16, EU:C:2017:250, point 1).

( 41 ) The establishment of quantitative thresholds to limit the exercise of control by a single undertaking in the media sector is provided for in Recommendation CM/Rec(2018)1 of 7 March 2018 of the Committee of Ministers of the Council of Europe to its Member States on media pluralism and transparency of ownership of the media, paragraphs 3.4 and 3.5, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680790e36; and in Recommendation CM/Rec(2007)2 of 31 January 2007 of the Committee of Ministers of the Council of Europe on media pluralism and diversity of media content, paragraphs 2.3 and 2.4, https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d6bd7.

( 42 ) ‘… while the maintenance of pluralism, through a cultural policy, is connected with the fundamental right of freedom of expression and, accordingly, … the national authorities have a wide margin of discretion in that regard, the requirements imposed under measures designed to implement such a policy must in no case be disproportionate in relation to that aim and the manner in which they are applied must not bring about discrimination against nationals of other Member States’. ‘In particular, such legislation cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law relating to a fundamental freedom’. See, to that effect, judgments of 28 November 1989, Groener (C‑379/87, EU:C:1989:599, paragraph 19); of 20 February 2001, Analir and Others (C‑205/99, EU:C:2001:107, paragraph 37); of 22 January 2002, Canal Satélite Digital (C‑390/99, EU:C:2002:34, paragraph 35); of 12 June 2003, Schmidberger (C‑112/00, EU:C:2003:333, paragraph 82); and of 13 December 2007, United Pan-Europe Communications Belgium and Others (C‑250/06, EU:C:2007:783, paragraphs 44 and 45).

( 43 ) Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ 2014 L 295, p. 79), states, in recital 2, that ‘the objective of any ex ante regulatory intervention is ultimately to produce benefits for end-users by making retail markets effectively competitive on a sustainable basis. It is likely that national regulatory authorities will gradually be able to find retail markets to be competitive even in the absence of wholesale regulation, especially taking into account expected improvements in innovation and competition’. It therefore identifies four markets in this sector that require intervention by the NRAs to increase competition.

( 44 ) See point 52.

( 45 ) See recital 5 of the Framework Directive.

( 46 ) The President of the Autorità Garante della Concorrenza e del Mercato, Giuseppe Tesauro, ‘Assetto del sistema radiotelevisivo e della società RAI–Radiotelevisione Italiana (AS 247)’, 19 December 2002, p. 10, https://www.aeranticorallo.it/segnalazione-19-dicembre-2002-dellautorita-garante-della-concorrenza-e-del-mercato-qassetto-del-sistema-radiotelevisivo-e-della-societa-rai-radiotelevisione-italiana-as-247/?print=pdf, stated: ‘risulta priva di una valida giustificazione la previsione di un diverso e più stringente limite, pari al 10 %, della raccolta delle risorse nel sistema integrato delle comunicazioni, in capo agli organismi i cui ricavi nel mercato dei servizi di telecomunicazioni siano superiori al 40 % dei ricavi complessivi di tale ultimo mercato. In considerazione del fatto che tale norma prevede l’applicazione di limiti più rigidi ad un operatore in virtù della sua posizione competitiva in un mercato distinto e non strettamente connesso, detta previsione appare ultronea. Le attività di un operatore in posizione dominante nel settore delle telecomunicazioni sono e devono essere regolamentate con riferimento a quello specifico comparto’.

( 47 ) Article 2(c) of the Framework Directive states that the term ‘electronic communications service’ excludes, first, ‘services providing, or exercising editorial control over, content transmitted using electronic communications networks and services’ and, secondly, ‘information society services, as defined in Article 1 of Directive 98/34/EC [of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37)], which do not consist wholly or mainly in the conveyance of signals on electronic communications networks’.

( 48 ) This point is made, once again, by recital 5 of the Framework Directive.

( 49 ) Judgments of 7 November 2013, UPC Nederland (C‑518/11, EU:C:2013:709, paragraph 41); of 30 April 2014, UPC DTH (C‑475/12, EU:C:2014:285, paragraph 36); and of 13 June 2019, Google (C‑193/18, EU:C:2019:498, paragraphs 31, 32 and 33).

( 50 ) As has already been explained, only TIM (and, therefore, Vivendi as controlling shareholder) has a share of more than 40% of the electronic communications market in Italy.