OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 28 April 2016 ( 1 )

Case C‑240/15

Autorità per le Garanzie nelle Comunicazioni

v

Istituto Nazionale di Statistica — ISTAT,

Presidenza del Consiglio dei Ministri,

Ministero dell'Economia e delle Finanze

(Request for a preliminary ruling from the Consiglio di Stato (Council of State), Italy)

‛Electronic communications networks and services — Effects on the impartiality and independence of national regulatory authorities — National regulatory authorities subject to provisions concerning limiting and streamlining public spending)’

1. Is the parliament of a Member State able to apply to so-called ‘national regulatory authorities’ ( 2 ) legislative measures to limit and streamline spending which were adopted in relation to all other public bodies? That, in essence, is the question which the Consiglio di Stato (Council of State, Italy) has referred to the Court for a preliminary ruling in the course of proceedings concerning the possible effects of laws governing public spending cuts on the independence of the Autorità per le Garanzie nelle Comunicazioni (Italian Communications Regulatory Authority; ‘AGCOM’).

I – Legal framework

A – EU law

2. Recital 11 in the preamble to 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 (‘the Framework Directive’), ( 3 ) as amended by Directive 2009/140/EC, ( 4 ) states as follows: ‘In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article [345 TFEU]. National regulatory authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.’

3. For its part, recital 13 in the preamble to Directive 2009/140, which amended the Framework Directive, states: ‘The independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To this end, express provision should be made in national law to ensure that, in the exercise of its tasks, a national regulatory authority responsible for ex-ante market regulation or for resolution of disputes between undertakings is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. … It is important that national regulatory authorities responsible for ex-ante market regulation should have their own budget allowing them, in particular, to recruit a sufficient number of qualified staff. In order to ensure transparency, this budget should be published annually.’

4. Article 3 of the Framework Directive, as amended by Directive 2009/140, provides: ‘1. Member States shall ensure that each of the tasks assigned to national regulatory authorities in this Directive and the Specific Directives is undertaken by a competent body. 2. Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services. Member States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control. 3. Member States shall ensure that national regulatory authorities exercise their powers impartially, transparently and in a timely manner. Member States shall ensure that national regulatory authorities have adequate financial and human resources to carry out the task assigned to them. 3a. Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex-ante market regulation or for the resolution of disputes between undertakings in accordance with Article 20 or 21 of this Directive shall act independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing Community law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 4 shall have the power to suspend or overturn decisions by the national regulatory authorities. … Member States shall ensure that national regulatory authorities referred to in the first subparagraph have separate annual budgets. The budgets shall be made public. Member States shall also ensure that national regulatory authorities have adequate financial and human resources to enable them to actively participate in and contribute to the Body of European Regulators for Electronic Communications (BEREC). [ ( 5 )] …’

5. Recital 30 in the preamble to 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 (‘the Authorisation Directive’) ( 6 ) stipulates that ‘[a]dministrative charges may be imposed on providers of electronic communications services in order to finance the activities of the national regulatory authority in managing the authorisation system and for the granting of rights of use. Such charges should be limited to cover the actual administrative costs for those activities. For this purpose transparency should be created in the income and expenditure of national regulatory authorities by means of annual reporting about the total sum of charges collected and the administrative costs incurred. This will allow undertakings to verify that administrative costs and charges are in balance.’ Recital 31 adds that ‘[s]ystems for administrative charges should not distort competition or create barriers for entry into the market’.

6. In accordance with Article 12 of the Authorisation Directive: ‘1. Any administrative charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use has been granted shall: (a) in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and (b) be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges. 2. Where national regulatory authorities impose administrative charges, they shall publish a yearly overview of their administrative costs and of the total sum of the charges collected. In the light of the difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made.’

B – National law

7. Law No 249 of 31 July 1997 ( 7 ) established AGCOM and, in Article 1(9), grants that authority considerable organisational independence and provides that it is to ‘adopt rules concerning its organisation, operation, budget, accounts, management of expenditure (including derogations from the provisions on State accounting in general), and legal and economic treatment of staff …’.

8. Legislative Decree No 259 of 1 August 2003 adopted the Electronic Communications Code, ( 8 ) Article 7(2) of which entrusts AGCOM with the tasks of NRAs referred to in Article 3 of the Framework Directive.

9. Law No 311 of 30 December 2004 on the 2005 budget ( 9 ) imposed a limit on spending increases by public administrative authorities, providing as follows in Article 1(5): ‘In order to ensure the public financing targets established by the European Union … are met for the years 2005-2007, the total spending of the public administrative authorities included in the consolidated profit and loss accounts, identified for 2005 in List 1 appended to this Law and for subsequent years by the National Institute of Statistics (‘ISTAT’) in a decision published by that institute in the Gazzetta Ufficiale no later than 31 July each year, may not exceed by more than 2% the corresponding updated estimates from the previous year as set out in the Budget Memorandum …’

10. Law No 266 of 23 December 2005 on the 2006 State budget ( 10 ) granted independent administrative authorities, like AGCOM, financial autonomy. Article 1(65) of that law provides: ‘From 2007 onwards, the operating expenses [of AGCOM] shall, in so far as they are not covered by funding from the national budget, be financed by the relevant market in the manner laid down in the rules in force. The amount of the contributions shall be determined by decision of [that] authority, within the limits provided for by law. The contributions shall be paid directly to [that same] authority.’

11. Decree-Law No 223 of 4 July 2006, converted into statute, after amendment, by Law No 248 of 4 August 2006, ( 11 ) laid down the obligation to reduce the operating costs of non-territorial public administrative authorities and bodies. In accordance with Article 22(1) of that law, ‘[t]he allocations for 2006 relating to expenditure for intermediate consumption in the budgets of the non-territorial public bodies … identified under Article 1(5) and (6) of Law No 311 of 30 December 2004[, with some exceptions,] shall be reduced by 10%.’ That reduction applied to all the public authorities on the ISTAT list, including AGCOM.

12. Law No 196 of 31 December 2009, laying down the new general legislation on accounting and public finance, ( 12 ) applied new national rules in that area. Article 1(2) of that law (as amended by Article 5(7) of Decree-Law No 16 of 2 March 2012) ( 13 ) provided that: ‘For the purposes of the application of the legislation on public finance, “public administrative authorities” means, for 2011, the bodies and persons indicated for statistical purposes in the list communicated by the Istituto nazionale di statistica (ISTAT) on 24 July 2010 and published in Gazzetta Ufficiale della Repubblica italiana No 171 on the same day, and, from 2012 onwards, the bodies and persons indicated for statistical purposes by ISTAT in the list communicated by that institute on 30 September 2011 and published in Gazzetta Ufficiale della Repubblica italiana No 228 on the same day, and any subsequent updates pursuant to paragraph 3 of this Article made on the basis of the definitions provided by specific EU regulations, independent authorities, [ ( 14 )] and, in any case, the administrative authorities referred to in Article 1(2) of Legislative Decree No 165 of 30 March 2001, as amended’.

13. On 28 September 2012, ISTAT published in the GURI the list of public administrative authorities included in the consolidated profit and loss account for public authorities, within the meaning of Law No 196 of 2009. ( 15 ) That list included AGCOM.

II – The national proceedings and the question referred for a preliminary ruling

14. AGCOM brought an action before the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court, Lazio; ‘the TAR’) contesting the list drawn up by ISTAT in 2012. AGCOM called into question its inclusion on that list and also the decision of the Italian legislature to apply to it the provisions on public finance, in particular those on limiting and streamlining public spending.

15. In the judgment of 12 June 2013, the TAR rejected AGCOM’s claims on the grounds, inter alia, that, in a different but related case, the Consiglio di Stato (Council of State) had ruled, by judgment No 6014/2012, that the inclusion of AGCOM on the ISTAT list should be regarded as lawful. The independence and autonomy of AGCOM did not exclude it from the category of a public administrative authority or from the resulting application of the provisions on public finance, and its self-financing arrangements were not relevant for those purposes because the charges it collects from operators are taxes under Italian law.

16. AGCOM appealed against the judgment of the TAR before the Consiglio di Stato (Council of State), submitting that its effectiveness as a regulatory authority in the telecommunications sector is reduced by the financial and organisational restrictions resulting from its subjection to the national provisions on public finance ( 16 ) and those on the limitation and streamlining of public spending. ( 17 ) AGCOM further contended that the Italian legislature should have applied more favourable provisions to it, similar to those laid down for Banca d’Italia, or, at least, should have confined the spending reductions to the part of its financing which comes from the State budget. Finally, AGCOM argued that the application of the domestic provisions cutting its expenditure is contrary to Article 3 of the Framework Directive and Article 12 of the Authorisation Directive.

17. AGCOM’s position was contested by ISTAT, the Presidenza del Consiglio dei Ministri and the Ministero dell’Economia e delle Finanze.

18. In its order for reference, the Consiglio di Stato (Council of State) explains that the lawfulness of the ISTAT list is no longer in dispute because Decree-Law No 16 of 2 March 2012 amended Article 1(2) of Law No 196 of 31 December 2009 to explicitly include independent authorities (like AGCOM) among the public administrative authorities and bodies subject to legislation on public finance.

19. The Consiglio di Stato (Council of State) explains in its order why it seeks a ruling from the Court on the compatibility of the disputed national measures with the Framework Directive and the Authorisation Directive. If those measures are found to be contrary to the principles of impartiality, independence and self-financing which Member States must guarantee to NRAs, it will not be possible to apply those measures to AGCOM because they will be contrary to EU law. However, the Consiglio di Stato (Council of State) believes that the measures are compatible with EU law.

20. Nevertheless, the referring court considers that it is necessary to seek clarification from the Court and has referred the following question for a preliminary ruling: ‘Do the principles of impartiality, financial autonomy and organisational independence which [NRAs] must be guaranteed by the Member States under Article 3 [of the Framework Directive] and the principle referred to in Article 12 [of the Authorisation Directive] that the [NRAs] must be largely self-financing preclude national legislation (such as that relevant to the present proceedings) which also makes those [NRAs] subject, in general, to legislation on public finance and, in particular, to specific provisions on limiting and streamlining expenditure incurred by public administrative authorities?’

21. During the written stage of the proceedings before the Court, observations were lodged by AGCOM, the Italian Government, the Netherlands Government and the European Commission. The Court chose to rule on the matter without opening the oral stage of the proceedings.

III – Analysis of the question referred for a preliminary ruling

22. By its question, the Consiglio di Stato (Council of State) seeks to ascertain, in summary, whether Article 3 of the Framework Directive and Article 12 of the Authorisation Directive preclude an NRA from being made subject, in general, to the Italian legislation on public finance and, in particular, to the laws enacted by the Italian parliament relating to limiting and streamlining public spending.

23. The Court must give its answer in the light of the facts and the national law as set out by the referring court, which is responsible for specifying the provisions of national law which it considers to be applicable to the main proceedings. ( 18 ) Accordingly, only the measures allegedly restrictive of AGCOM’s independence that are cited by the Consiglio di Stato (Council of State) in its order can be analysed. ( 19 )

24. In its written observations, AGCOM referred to other later decisions adopted by the Italian legislature, which continue on the same lines and in accordance with which the general rules on limiting and streamlining expenditure imposed on all Italian public administrative authorities are applied to AGCOM. It does not seem to me to be appropriate, for the purpose of replying to the question referred for a preliminary ruling, to take account of provisions not mentioned by the Consiglio di Stato (Council of State) in its order for reference, although, to tell the truth, the answer which I shall propose would, in all likelihood, be the same even if those new measures were taken into consideration.

A – The independence of NRAs and the case-law of the Court

25. AGCOM is one of the ‘independent authorities’ or ‘independent administrative authorities’ created in the Member States to guarantee the application of provisions on the liberalisation of certain economic sectors. ( 20 ) They do not form part of the classic hierarchical administration and, in order to carry out their technical regulatory and supervisory functions impartially, ( 21 ) they are afforded independent status vis-à-vis economic operators and, as the case may be, the political authorities of the State. ( 22 )

26. Independence is asserted, first, vis-à-vis market operators. That occurs in the specific case of NRAs in the electronic communications sector, in accordance with Article 3(2) of the Framework Directive. ( 23 ) That aspect of the independence of NRAs is deeply rooted in secondary EU law and, in the case of AGCOM, no one has questioned it throughout AGCOM’s dispute with the Italian Government.

27. The Court ( 24 ) has addressed the independence of NRAs from market operators, ruling on the separation between the functions of regulation and commercial operation. The Court has held in a number of judgments that, under Article 3 of the Framework Directive, although the Member States enjoy institutional autonomy as regards the organisation and the structuring of their NRAs, they must ensure that each of the tasks assigned to NRAs be undertaken by a competent body. Member States must also guarantee the independence of those authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services and that they exercise their powers impartially and transparently at the appropriate time. ( 25 )

28. Nonetheless the Court has held that a national legislature may act as an NRA within the meaning of the Framework Directive provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by that directive, that its decisions can be appealed against before an independent body, and that it does not limit or abolish tasks which have been expressly assigned to the NRA by the directives. ( 26 ) The Court has also observed that, in the exercise of their powers, the NRAs have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis. ( 27 )

29. The fact that the independence of NRAs makes it possible for them to remain free from the influence of authorities of the State, particularly the government, is more complex. It is a problem which may acquire a constitutional dimension in some States, since, in short, NRAs are accorded independent status vis-à-vis political authorities, ( 28 ) while it is the latter which have democratic legitimacy. Article 3 of the Framework Directive, as amended by Directive 2009/140, specifically established that model of NRA in the electronic communications sector.

30. In my view, the independence of NRAs does not mean that they are exempt from the basic rules on the operation of a public administrative authority or from control and supervision by parliament. In accordance with the protection provided by Article 3 of the Framework Directive, the independence of NRAs basically entails the following elements: ( 29 ) — Institutional independence, which means that NRAs are established as entities which are separate from ministries and other public bodies. — Functional independence, that is, autonomy to carry out their tasks without interference by other authorities. — The independence of their members and staff from pressure or interference by other authorities. — Financial independence, which means the availability of financial and material resources so that they can perform their activities independently. This case deals specifically with the extent of AGCOM’s financial independence.

31. The Court has yet to give a ruling on the political independence of NRAs in the communications sector, although it has done so in relation to national supervisory authorities for the protection of personal data. The judgments given in relation to the latter (in particular, in Commission v Germany, Commission v Austria and Commission v Hungary) provide reference criteria which may be extrapolated, subject to certain conditions, to NRAs in the electronic communications sector. The data protection authorities act as guarantors of the fundamental right to privacy, a factor to which the Court attaches great importance in order to protect their independence, ( 30 ) which does not occur in the case of NRAs in the electronic communications sector.

32. According to the Court, the competent supervisory authorities for the protection of personal data must enjoy an independence which allows them to perform their duties free from external influence. That independence precludes, in particular, any directions or any other external influence, whether direct or indirect, which is liable to have an effect on their decisions and, as a result, call into question the performance by those authorities of their task consisting of establishing a fair balance between the protection of the right to private life and the free movement of personal data. ( 31 ) The functional independence of a supervisory authority is an essential condition in order for that authority to satisfy the criterion of independence within the meaning of the second subparagraph of Article 28(1) of Directive 95/46, although such functional independence is not by itself sufficient to protect that supervisory authority from all external influence. ( 32 )

33. In that connection, the Court has held that the mere risk that the national scrutinising authorities could exercise a political influence over the decisions of the supervisory authorities is enough to hinder the latter authorities’ independent performance of their tasks, since there could be ‘prior compliance’ on the part of those authorities in the light of the scrutinising authority’s decision-making practice. For those authorities to submit to the will of the political authority is incompatible with the requirement of independence. ( 33 )

34. The Court has held that, even in the case of national data protection supervisory authorities, the independence of such authorities is not unlimited, meaning that the absence of any parliamentary influence over those authorities is inconceivable. ( 34 ) The management of the supervisory authorities may be appointed by the parliament or the government while the legislature may define the powers of those authorities and impose an obligation on them to report their activities to the parliament. ( 35 )

35. In short, an assessment of the extent of the political independence of NRAs, as it is conceived in EU law, requires the striking of a difficult balance between, on the one hand, the powers to be granted to NRAs in order to guarantee their freedom of action and, on the other, the need for NRAs to be subject to the democratic controls inherent in the rule of law and to the general provisions governing the operations of administrative authorities.

B – Whether it is possible to limit the financial independence of AGCOM

36. The Consiglio di Stato (Council of State) asks the Court to rule on whether the national measures limiting public spending are liable to affect the independence and impartiality of AGCOM, as guaranteed by Article 3 of the Framework Directive. The Consiglio di Stato (Council of State) asks, in short, whether the financial independence of an NRA (an essential component of its political independence) is restricted, in a manner incompatible with Article 3 of the Framework Directive, when a Member State limits by law (in this case, to 2%) the annual increase in the budget of an NRA, makes that NRA subject to legislation on public finance applicable to all administrative authorities and reduces its operating costs by 10%. Those limitations are of a general nature, that is, they apply to all Italian public administrative authorities and were not adopted solely in relation to AGCOM.

37. AGCOM submits that the measures adopted by Italy limit its budgetary autonomy and, therefore, affect its independence in a manner incompatible with EU law. It contends that the budgetary autonomy of NRAs precludes the general application to such authorities of national provisions on public finance, including provisions which impose a ceiling on spending increases and those which set across-the-board reductions in spending, because these affect an NRA’s freedom to manage its financial resources in the manner best suited to its operational needs.

38. AGCOM further contends that this type of measure restricting its financial autonomy is not justified by the requirement to reduce public spending, since its management costs are not financed by the State budget: all its resources come from the contributions paid by the market operators which are subject to its regulatory activities.

39. Lastly, AGCOM points out that other solutions less restrictive of AGCOM’s financial autonomy and independence were available to Italy for reconciling the reduction in public spending with respect for the autonomy of NRAs. In AGCOM’s submission, it should have received the same treatment from the Italian State as that afforded to the Italian central bank, to which the measures for limiting public spending were not applied automatically.

40. The Commission, Italy and the Netherlands put forward the contrary view, which is the same as that advanced by the Consiglio di Stato (Council of State) in the order for reference.

41. As the Court has observed in relation to a public body, the term ‘independence’ normally means a status which ensures that the body concerned can act with complete freedom, without taking any instructions or being put under any pressure. ( 36 ) As I stated above, that independence is granted vis-à-vis economic operators on the market in which the NRA acts and vis-à-vis the political authorities of the State. ( 37 )

42. Admittedly, the political authorities of the State could, in theory, restrict the independence of NRAs and influence those authorities through drastic cuts in their financial and human resources. ( 38 ) To preclude this and strengthen the status of NRAs in the electronic communications sector, Directive 2009/140 inserted a number of amendments into Article 3 of the Framework Directive, designed to shore up their financial independence. ( 39 ) Furthermore, two explicit requirements were inserted into Article 3(3a), in fine: NRAs must have separate annual budgets and they must have adequate financial and human resources to enable them to actively participate in and contribute to BEREC.

43. The Framework Directive does not provide for NRAs to have unfettered financial independence, since it states that it ‘shall not prevent supervision in accordance with national constitutional law’. That assertion is connected to the case-law laid down by the Court in Commission v Germany, ( 40 ) which accepts that some parliamentary scrutiny of national supervisory authorities for the protection of personal data is possible. That case-law may be extrapolated to NRAs in the electronic communications sector, with the result that it is lawful to make those authorities subject to certain rules derived from the pre-eminence inherent in democratic legitimacy. ( 41 ) Reporting to the national parliament and being made subject to audits by the national court of auditors, to give just two examples, come within the limits set by the Framework Directive in the electronic communications sector.

44. As the Netherlands Government pointed out in its observations, budgetary control of NRAs by the national parliament (which is, I repeat, compatible with the financial independence conferred on NRAs by Article 3 of the Framework Directive) enables the application to such authorities, also ex ante, of measures for limiting public spending. Such measures will only affect the independence of an NRA in a manner incompatible with Article 3 of the Framework Directive if they are disproportionate and prevent the NRA from carrying out its tasks or if they lead to the removal of the NRA’s separate budget.

45. In the Italian case, the legislative measures applied to AGCOM have not entailed the removal of its separate, publicised budget and, according to the Consiglio di Stato (Council of State), nor have they affected its ability to manage the funds needed to carry out its tasks. The referring court states that AGCOM has not provided specific evidence of such negative effects, confining itself to complaining that the legislation in question impinges on its financial autonomy and its independence in general; this is an issue of fact which falls solely within the referring court’s jurisdiction.

46. Moreover, the legislation on public finance and limiting public spending (2% limit on spending increases in the 2005 budget law and 10% reduction in spending on intermediate consumption in Law No 248 of 4 August 2006) satisfies a legitimate aim of budgetary discipline adopted as a general measure by the Italian State and not an individual decision aimed specifically at AGCOM.

47. Therefore, since AGCOM has not established before the referring court that the measures at issue have had a genuine impact on its activity or that general budgetary constraints have prevented it, specifically, from being ‘in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of [its] tasks’ (recital 11 in the preamble to the Framework Decision), it is difficult to accept that those measures have adversely affected its independence in the sense referred to above. ( 42 )

48. AGCOM’s claim that it should receive from the Italian State special treatment equivalent to that afforded to Banca d’Italia, which is only subject to obligations to achieve a particular result, does not appear to me to be justified either, and again I agree with the position of the referring court on that argument.

49. Article 3 of the Framework Directive does not provide that the financial independence of NRAs requires Member States to restrict themselves to imposing on those authorities mere obligations to achieve a particular result in relation to the budget, thereby excluding cross-cutting measures on limiting expenditure. Nor does the Framework Directive limit provisions which equate the independence of NRAs to that of a central bank of a Member State.

50. The independence of national central banks is enshrined in provisions of primary law (Article 130 TFEU and Article 7 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank) and it reflects their special role as implementers of the single monetary policy under the direction of the European Central Bank and guided by the aim of achieving price stability. ( 43 ) Furthermore, that independence is necessary in order to enforce the application to central banks of the prohibition of monetary financing of national authorities of the Member States, which is enshrined in Article 123 TFEU. None of those objectives can be extrapolated to the activities of NRAs in the electronic communications sector, whose status is defined in the relevant directives.

51. AGCOM states that its financing comes from the Italian State budget and, to a large extent, from the administrative charges which it collects from operators in the electronic communications market. AGCOM further submits that, in recent financial years, it has been completely self-financing, from which it follows that its spending is not the cause of a public deficit and the application of the general measures adopted in that connection by the Italian State are contrary to Article 12 of the Authorisation Directive; those measures should be limited, in its case, to the financing it receives from the State budget.

52. I share the opinion of the referring court, the Commission, the Italian Government and the Netherlands Government, that those arguments are not relevant. The charges imposed on undertakings are governed by Article 12 of the Authorisation Directive and are not intended to cover all the administrative costs incurred by NRAs but rather, according to Article 12(1)(a), only those incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2) of that directive, which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection. ( 44 )

53. Although the Member States are free to lay down their own legal provisions in relation to those charges, the Court has held that it is clear from Article 12(2) of the Authorisation Directive that those charges must cover the actual administrative costs relating to the activities referred to in that directive and must be in balance with those costs, in such a way that the totality of the income obtained by the Member States from the charge concerned cannot exceed the total costs relating to those activities. ( 45 ) Furthermore, Article 12(1)(b) of the Authorisation Directive requires the Member States to impose those administrative charges upon undertakings in an objective, transparent and proportionate manner.

54. The charges used to finance AGCOM are taxes established by the Italian State and Article 12 of the Authorisation Directive does not grant NRAs absolute power to fix the level of those charges ( 46 ) irrespective of the provisions on limiting public spending adopted in general by the State. The charges must be proportionate to AGCOM’s spending in four areas (namely, the issue, management, control and enforcement of the applicable general authorisation scheme) and AGCOM may not increase that expenditure without scrutiny or reduce it irrespective of the general State budgetary provisions. Those charges, together with the other taxes levied on electronic communications undertakings, affect part of the tax burden borne by taxpayers (undertakings usually pass such taxes on to consumers) and parliament may, where economic necessities so require, enact legislation for that purpose. Where, as occurs in the instant case, legislative measures for limiting expenditure have not affected the actual ability of AGCOM to carry out its tasks, no complaint can be made about those measures from the perspective of financial independence.

55. In summary, I believe that the impartiality and independence granted to NRAs under Article 3 of the Framework Directive and the substantial self-financing of NRAs referred to in Article 12 of the Authorisation Directive do not preclude national legislation which makes such authorities subject, in general, to legislation on public finances and, in particular, to specific provisions relating to limiting and streamlining expenditure incurred by public administrative authorities.

IV – Conclusion

56. In the light of the foregoing arguments, I propose that the Court reply to the question referred by the Consiglio di Stato (Council of State, Italy) as follows: The impartiality and independence granted to national regulatory authorities under Article 3 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 and the substantial self-financing of such authorities referred to in Article 12 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 do not preclude national legislation which makes such authorities subject, in general, to legislation on public finances and, in particular, to specific provisions relating to limiting and streamlining expenditure incurred by public administrative authorities.

( 1 ) Original language: Spanish.

( 2 ) I shall use the acronym ‘NRA’ from now on. [Translator’s note: the first part of this footnote is not relevant to the English-language version]

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

( 4 ) Directive of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and Directive 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).

( 5 ) Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ 2009 L 337, p. 1).

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

( 7 ) Legge del 31 luglio 1997, n. 249, recante istituzione dell’Autorità per le Garanzie nelle Comunicazioni (GURI No 177 of 31 July 1997).

( 8 ) Legislative Decree of 1 August 2003, No 259, Codice delle comunicazioni elettroniche (GURI No 214 of 15 September 2003).

( 9 ) Legge del 30 dicembre 2004, n. 311, Disposizioni per la formazzione del bilancio annuale y pluriennale dello Stato (legge finanziaria 2005) (GURI No 306 of 31 December 2004).

( 10 ) Legge del 23 dicembre 2005, n. 266, Disposizioni per la formazzione del bilancio annuale y pluriennale dello Stato (legge finanziaria 2006), (GURI No 306 of 29 December 2005).

( 11 ) Decreto legge del 4 luglio 2006, n. 223 (GURI No 153 of 4 July 2006, p. 4), convertito, con modifiche, nella legge del 4 agosto 2006, n. 248 (GURI No 186 of 11 August 2006).

( 12 ) Legge del 31 dicembre 2009, n. 196, recante la nuova normativa generale in tema di contabilità e finanza pubblica (GURI No 303 of 31 December 2009).

( 13 ) Decreto-legge del 2 marzo 2012, n. 16 (GURI No 52 of 2 March 2012).

( 14 ) My emphasis.

( 15 ) Elenco delle amministrazioni pubbliche inserite nel conto economico consolidato individuate ai sensi dell’articolo 1, comma 3, della legge 31 dicembre 2009, n. 196 (GURI No 227 of 28 September 2012).

( 16 ) Referring to Article 1(2) of Law No 196 of 31 December 2009.

( 17 ) Referring to Law No 311 of 30 December 2004 on the 2005 budget and Decree-Law No 223 of 4 July 2006.

( 18 ) Judgments in Burda (C‑284/06, EU:C:2008:365, paragraph 39), and Belgacom and Others (C‑375/11, EU:C:2013:185, paragraph 30).

( 19 ) The Consiglio di Stato (Council of State) refers, on the one hand, to provisions pursuant to which the total spending of the public administrative authorities included in the consolidated profit and loss accounts, identified for 2005 in List 1 appended to Law No 311 of 30 December 2004 and for subsequent years by the Istituto nazionale di statistica (National Institute of Statistics) (ISTAT) in a decision to published in the Gazzetta Ufficiale no later than 31 July each year, may not exceed by more than 2% the corresponding updated estimates from the previous year as set out in the Budget Memorandum (Article 1(5) of Law No 311 of 30 December 2004). On the other hand, the Consiglio di Stato (Council of State) refers to Decree-Law No 223 of 4 July 2006, converted into statute, after amendment, by Law No 248 of 4 August 2006, which stipulated reductions in the operating costs of non-territorial public administrative authorities and bodies. According to Article 22(1) of that decree-law, ‘[t]he allocations for 2006 relating to expenditure for intermediate consumption in the budgets of the non-territorial public bodies … identified under Article 1(5) and (6) of Law No 311 of 30 December 2004[, with some exceptions,] shall be reduced by 10%’.

( 20 ) There is abundant legal literature on this concept, which has recently become so important in European public law. I refer to the works by Caranta, R.; Andenas, M.; Fairgrieve, D. (eds), Independent Administrative Authorities, British Institute of International and Comparative Law, London, 2005; García Álvarez, G., ‘La Unión Europea como estado regulador y las Administraciones independientes’, Revista de Adminsitración Pública, 2014, No 1, pp. 79 to 111; Hanretty, C.J.; Larouche, Pierre; Reindl, A., Independence, Accountability and Perceived Quality of Regulators, Center on Regulation in Europe, 2012; Ottow, A., ‘The different levels of protection of national supervisors’ independence in the European landscape’, in Comtois S.; de Graaf, K. (eds.), On judicial and quasi-judicial Independence, Eleven International Publishing, The Hague, 2013, pp. 139 to 166.

( 21 ) Among the tasks commonly assigned to NRAs are the adoption of rules or guidelines, regulation, supervision, inspection, control and possibly the power to impose penalties. Obviously, not all NRAs have the same level of powers.

( 22 ) Judgment of 9 March 2010 in Commission v Germany (C‑518/07, EU:C:2010:125, paragraph 42).

( 23 ) Transcribed at point 4.

( 24 ) The case-law of the Court on the independence of railway infrastructure managers provides few criteria relevant to these proceedings because, first, there is more limited regulation of this area in the provisions of secondary law and, second, the cases adjudicated on concerned the independence of the railway infrastructure manager from companies in the sector. See the judgments in Commission v Portugal (C‑557/10, EU:C:2012:662); Commission v Germany (C‑556/10, EU:C:2013:116); and Commission v France (C‑625/10, EU:C:2013:243).

( 25 ) Judgments in Comisión del Mercado de las Telecomunicaciones (C‑82/07, EU:C:2008:143, paragraph 24); Base and Others (C‑389/08, EU:C:2010:584, paragraph 29); and KPN (C‑85/14, EU:C:2015:610, paragraphs 53 and 54).

( 26 ) Judgment in Base and Others (C‑389/08, EU:C:2010:584, paragraph 30), and Opinion of Advocate General Bot in KPN (C‑85/14, EU:C:2015:245, points 110 to 117).

( 27 ) Judgments in Arcor (C‑55/06, EU:C:2008:244, paragraphs 153 to 156), and Commission v Germany (C‑424/07, EU:C:2009:749, paragraph 61).

( 28 ) Some authors have stated that when a directive grants exclusive powers to an independent NRA, it in fact creates an ‘administrative derogation’, that is, it excludes legislative action in that particular area. See Baño León, J.M., ‘Reserva de administración y Derecho comunitario’, Papeles de Derecho Europeo e Integración Regional, WP IDEIR, 2001, No 7, p. 7.

( 29 ) See, in that regard, Lavrijssen, S.; Ottow, A., ‘Independent Supervisory Authorities: A Fragile Concept’, Legal Issues of Economic Integration, 2012, No 4, pp. 427 to 428.

( 30 ) Article 28(1), second subparagraph, of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) requires Member States to set up one or more supervisory authorities which are to act with complete independence in exercising the functions entrusted to them. The Court has observed that: ‘In addition, the requirement that compliance with the EU rules on the protection of individuals with regard to the processing of personal data is subject to control by an independent authority derives from the primary law of the European Union and, in particular, from Article 8(3) of the Charter of Fundamental Rights of the European Union and Article 16(2) TFEU’ (judgment in Commission v Hungary, C‑288/12, EU:C:2014:237, paragraph 47). The Court has also held that ‘[t]he establishment in Member States of independent supervisory authorities is thus an essential component of the protection of individuals with regard to the processing of personal data’ (judgments in Commission v Germany (C‑518/07, EU:C:2010:125, paragraph 23), and Commission v Austria (C‑614/10, EU:C:2012:631, paragraph 37).

( 31 ) See, in that connection, the judgments in Commission v Germany (C‑518/07, EU:C:2010:125, paragraph 30), and Commission v Austria (C‑614/10, EU:C:2012:631, paragraphs 41 and 43).

( 32 ) Judgments in Commission v Austria (C‑614/10, EU:C:2012:631, paragraph 42), and Commission v Hungary (C‑288/12, EU:C:2014:237, paragraph 52).

( 33 ) Judgment in Commission v Austria (C‑614/10, EU:C:2012:631, paragraph 51).

( 34 ) An analysis of the balance between the independence and accountability of NRAs can be found in Hanretty, C.J.; Larouche, P.; Reindl, A., Independence, Accountability and Perceived Quality of Regulators, Center on Regulation in Europe, 2012.

( 35 ) Judgment in Commission v Germany (C‑518/07, EU:C:2010:125, paragraphs 43 to 45).

( 36 ) Judgment in Commission v Germany (C‑518/07, EU:C:2010:125, paragraph 18).

( 37 ) According to the Court, ‘when carrying out their duties, the supervisory authorities must act objectively and impartially. For that purpose, they must remain free from any external influence, including the direct or indirect influence of the State’ (judgment in Commission v Germany, C‑518/07, EU:C:2010:125, paragraph 25).

( 38 ) The importance of the financial independence of NRAs was pointed out by the Organisation for Economic Cooperation and Development (OECD), The Governance of Regulators. OECD Best Practice Principles for Regulatory Policy, 2014, p. 99, and by the Center on Regulation in Europe (CERRE), Code of Conduct and Best Practices for the setup, operations and procedure of regulatory authorities, 2014, p. 6, available at: http://www.cerre.eu/content/cerre-code-conduct-and-best-practices-setup-operations-and-procedure-regulatory-authorities.

( 39 ) Transcribed at point 4. I repeat that, under Article 3(3), NRAs must have ‘adequate financial and human resources to carry out the task assigned to them’.

( 40 ) Judgment in Commission v Germany (C‑518/07, EU:C:2010:125, paragraphs 43 to 46).

( 41 ) Judgment in Commission v Germany (C‑518/07, EU:C:2010:125, paragraph 46).

( 42 ) Nor does it appear that the measures on limitations of and cuts in spending which Italy has applied to AGCOM will prevent it from having adequate financial and human resources to enable it to actively participate in and contribute to BEREC, for the purposes of Article 3(3a), in fine, of the Framework Directive. At all events, it is for the national court to assess whether there is such a breach based on the evidence adduced in the proceedings.

( 43 ) In the judgment in Commission v ECB (C‑11/00, EU:C:2003:395, paragraphs 134 and 135), the Court observed that ‘Article 108 EC seeks, in essence, to shield the ECB from all political pressure in order to enable it effectively to pursue the objectives attributed to its tasks, through the independent exercise of the specific powers conferred on it for that purpose by the EC Treaty and the ESCB Statute. … By contrast … recognition that the ECB has such independence does not have the consequence of separating it entirely from the European Community and exempting it from every rule of Community law.’

( 44 ) Judgment in Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C‑254/12 to C‑258/12, EU:C:2013:495, paragraphs 38 and 40).

( 45 ) The Court carries out that analysis (specifically in relation to the charges collected in Italy by AGCOM) in the judgments in Vodafone Omnitel and Others (C‑228/12 to C‑232/12 and C- 254/12 to C 258/12, EU:C:2013:495, paragraph 41). On the same lines, see the judgment in Vodafone Malta and Mobisle Communications (C‑71/12, EU:C:2013:431, paragraph 23).

( 46 ) In addition, recital 31 in the preamble to the Authorisation Directive states that ‘[s]ystems for administrative charges should not distort competition or create barriers for entry into the market’. An excessively high level of administrative spending by AGCOM would conflict with that aim.