Case C-380/05: Reference for a preliminary ruling from the Consiglio di Stato by order of that court of  19 April 2005  in Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle Comunicazioni, Direzione Generale Autorizzazioni e Concessioni Ministero delle Comunicazioni
Date: 2006-01-14
Institutions: Court of Justice
Subjects: Italy, award of contract, broadcasting, competition, freedom to provide services, interpretation of the law, pluralism in the media, television

14.1.2006

EN

Official Journal of the European Union

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the motor vehicle sector (‘Regulation (EC) No 1400/2002’)
required far-reaching changes to the distribution systems
previously used by suppliers and their dealers under Regu-
lation (EC) No 1475/95 which were exempted under that
regulation?

2. If the first question is to be answered in the negative:

Is Article 4 of Regulation (EC) No 1400/2002 to be inter-
preted so that, exceptionally, the existence of agreements
which are restrictive of competition in a motor vehicle deal-
ership agreement which constitute hardcore restrictions
(‘grey clauses’) under that regulation did not, on expiry of
the one-year transitional period on 30 September 2003, laid
down in Article 10 of the Regulation, preclude the applica-
tion of the exemption from the prohibition under Article
81(1) EC for all agreements restrictive of competition in the
dealership agreement,
that agreement was concluded
when Regulation (EC) No 1475/95 was still applicable,
adapted to the
regulation and
exempted by that regulation?

requirements of

that

if

Is this still the case where the result under Community law
is the invalidity of all contractual provisions restrictive of
competition, whereas under national law, the result is that
the entire dealership agreement is invalid?

(1) OJ L 145, 29.6.1995, p. 25
(2) OJ L 203, 1.8.2002, p. 30

Reference for a preliminary ruling from the Consiglio di
Stato by order of that court of 19 April 2005 in Centro
Europa 7 Srl v Ministero delle Comunicazioni e Autorità
per le Garanzie nelle Comunicazioni, Direzione Generale
Autorizzazioni e Concessioni Ministero delle Comunica-
zioni

(Case C-380/05)

(2006/C 10/19)

(Language of the case: Italian)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Consiglio di Stato of 19
April 2005, received at the Court Registry on 18 October
2005, for a preliminary ruling in the proceedings between
Centro Europa 7 Srl and Ministero delle Comunicazioni
(Ministry of Communications) e Autorità per le Garanzie nelle
Comunicazioni,
(Authority for Security of Communications)
Direzione Generale Autorizzazioni e Concessioni Ministero
for Authorisations
(Directorate General
delle Comunicazioni

and Concessions in the Ministry for Communications) on the
following questions:

1. Does Article 10 of the ECHR, as referred to in Article 6 of
the Treaty on European Union, guarantee pluralism in the
broadcasting sector, thus requiring the Member States to
secure pluralism and competition in the sector based on
an antitrust system which,
in relation to technological
development, secures network access and multiplicity of
operators and renders duopolistic market behaviours
unlawful?

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

3. With effect from 25 July 2003, does Article 17 of Direc-
tive 2002/20/EC (1)
(authorisation directive) render that
directive directly effective in the internal legal order and
oblige a Member State which has granted broadcasting
rights (right
to install networks or provide electronic
communication services or the right to use frequencies) to
bring them into line with Community rules; and does that
entail the need actually to allocate the frequencies neces-
sary for carrying on the activity in question.

4. Do Article 9 of framework directive 2002/21/EC (2) and
Article 5 of the authorisation directive providing for trans-
parent and non-discriminatory public procedures (Article
5) conducted on the basis of objective, transparent, non-
discriminatory and proportionate
(Article 9)
preclude a system providing for general authorisation
under national law (Article 23(5) of law no 112/2004); by
permitting the continued operation, under that system of
networks in breach of limits and not selected under a
competitive procedure, do those provisions ultimately
impinge on the Community-law rights under (Article 17(2)
of Directive 2002/20/EC) of other undertakings which are
prevented from operating even though they have been
successful in competitive procedures.

criteria

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Official Journal of the European Union

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5. Do Article 9 of Directive 2002/21/EC (framework direc-
tive), the second subparagraph of Article 5(2) and Article
7(3) of Directive 2002/20/EC (authorisation directive), and
Article 4 of Directive 2002/77/EC (3), require the Member
States to arrange for the cessation, at least as from 25 July
2003 (see Article 17 of the authorisation directive), of a
situation in which frequencies are actually occupied (use of
facilities without grant of rights or authorisations issued
thus, with
following a comparison of
regard to the broadcasting system operated, is the conduct
of broadcasting precluded where there is no proper plan-
ning in regard to matters concerning the airwaves and no
logical increase in pluralism and contradictions with rights
actually awarded by the Member State following a public
procedure.

the applicants);

6. Is the derogation in the second subparagraph of Article
5(2) of Directive 2002/20/EC (authorisation directive), and
in Article 4 of Directive 2002/77/EC, available to be relied
on by the Member State solely in order to protect plur-
alism of information and to guarantee the protection of
cultural or linguistic diversity and not in favour of opera-
tors of networks in breach of the limits laid down in
national competition legislation.

7. In order to benefit from the derogation under Article 5 of
Directive 2002/20/EC, does the Member State have to indi-
cate the objectives actually pursued by the national deroga-
tory rules.

8. May that derogation be applied, in addition to the case of
the concessionary of the public broadcasting service (RAI
in Italy), in favour also of private operators not successful
in competitive procedures and to the detriment of under-
takings who may have duly been granted rights following
a competitive procedure?

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

10. Lastly, is the pluralism of sources of information and of
competition in the broadcasting sector, which is guaran-
teed by European law, secured by national rules, such as
law no 112/2004 providing for a new limit of 20 percent
of resources linked to a new very wide criterion (the ICS
— integrated communications system — Article 2(g) and
Article 15 of law no 112/2004). This criterion also brings
in activities which do not affect media pluralism, whereas

under antitrust law the ‘relevant market’
is constructed
normally by differentiating the markets in the broadcasting
sector by drawing a distinction between pay/TV and non-
pay TV operating via the airwaves (reference is made inter
alia to the Commission cases COMP/JV. 37-BSKYB/Kirch
Pay TV Regulation (EEC) No 4064/89 Merger Procedure
21/03/2000 and COMP/M.2876-Newscorp-TELEPIU Regu-
lation (EEC) No 4064/89 Merger Procedure 2/04/2003.

(1) OJ L 108, de 24.4.2002, p. 21.
(2) OJ L 108, de 24.4.2002, p. 33.
(3) OJ L 249, de 17.9.2002, p. 21.

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles by judgment of that court of 13 October
2005 in De Lantsheer Emmanuel v Comite Interprofes-
sionnel du vin de Champagne (‘CIVC’) and Veuve Clicquot
Ponsardin

(Case C-381/05)

(2006/C 10/20)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'appel de Brux-
elles (Brussels Court of Appeal) of 13 October 2005, received
at the Court Registry on 19 October 2005, for a preliminary
ruling in the proceedings between De Lantsheer Emmanuel and
Comite Interprofessionnel du vin de Champagne (‘CIVC’) and
Veuve Clicquot Ponsardin on the following questions:

1. Does the definition of comparative advertising cover adver-
tisements in which the advertiser refers only to a type of
product, so that in those circumstances such advertisements
must be regarded as referring to all undertakings which
offer that type of product, and each of them can claim to
have been identified?

2. With a view to determining whether there is a competitive
relationship between the advertiser and the undertaking to
which reference is made within the meaning of Article 2a of
Directive 84/450:

(a) On the basis in particular of a comparison of Article 2a
with paragraph (b) of Article 3a, should any undertaking
which can be identified in the advertising be regarded as
a competitor within the meaning of Article 2a, whatever
the goods or services it offers?