Joined Cases C-764/23 to C-766/23, Cairo Network and Others: Judgment of the Court (Third Chamber) of 11 September 2025 (request for a preliminary ruling from the Consiglio di Stato – Italy) – Cairo Network Srl (C-764/23), Europa Way Srl (C-765/23), Persidera SpA (C-766/23) v Ministero delle Imprese e del Made in Italy, Autorità per le Garanzie nelle Comunicazioni and Others (Reference for a preliminary ruling – Electronic communications networks and services – Directives 2002/20/EC, 2002/21/EC and 2002/77/EC – Rights to use digital terrestrial broadcasting radio frequencies for radio and television – Conversion of rights of use – Granting of rights of use – Judicial protection – Independence of national regulatory authorities)
Date: 2025-09-11
Institutions: Court of Justice
Subjects: competition law, equal treatment, high-definition television, principle of proportionality, public institution, regulation of telecommunications, restriction on competition, tendering, trans-European network, transmission network








C_202505798EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/5798


10.11.2025






Judgment of the Court (Third Chamber) of 11 September 2025 (request for a preliminary ruling from the Consiglio di Stato – Italy) – Cairo Network Srl (C-764/23), Europa Way Srl (C-765/23), Persidera SpA (C-766/23) v Ministero delle Imprese e del Made in Italy, Autorità per le Garanzie nelle Comunicazioni and Others


(Joined Cases C-764/23 to C-766/23,
                (1)
Cairo Network and Others)

(Reference for a preliminary ruling - Electronic communications networks and services - Directives 2002/20/EC, 2002/21/EC and 2002/77/EC - Rights to use digital terrestrial broadcasting radio frequencies for radio and television - Conversion of rights of use - Granting of rights of use - Judicial protection - Independence of national regulatory authorities)
(C/2025/5798)
Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings


Applicants: Cairo Network Srl (C-764/23), Europa Way Srl (C-765/23), Persidera SpA (C-766/23)

Defendants: Ministero delle Imprese e del Made in Italy (C-764/23 and C-766/23), Autorità per le Garanzie nelle Comunicazioni, Presidenza del Consiglio dei Ministri, Ministero dell’Economia e delle Finanze, Ministero dello Sviluppo economico (C-765/23)

In the presence of: Radiotelevisione italiana SpA (RAI), Persidera SpA (C-764/23 and C-765/23), Mediaset SpA (C-764/23 and C-765/23), Elettronica Industriale SpA, Premiata Ditta Borghini e Stocchetti di Torino Srl, Europa Way Srl (C-764/23 and C-766/23), Prima TV SpA, Associazione di Categoria Aeranti-Corallo (C-764/23), 3lettronica Industriale SpA (C-765/23 and C-766/23), Espansione Srl (C-766/23), Cairo Network Srl (C-765/23 and C-766/23)

Operative part of the judgment







1.


Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as not precluding national legislation which, first, limits the effects of appeals brought by economic operators against acts relating to the allocation of rights to use radio frequencies, in the context of the reconfiguration of the 694-790 MHz frequency band, to the award of financial compensation and, secondly, limits the scope of interim measures that may be ordered pending the examination of such an action to the payment of a provision, provided that the terms of that financial compensation make it possible to fully compensate the damage suffered by those economic operators as a result of the application of those acts.










2.


Articles 3, 8 and 9 of Directive 2002/21, as amended by Directive 2009/140,
must be interpreted as not precluding a national legislature from providing that the allocation of rights to use additional transmission capacity, released in the context of the transition between two broadcasting technologies, is to be carried out by means of a fee-based procedure, the characteristics of which, as regards the conditions for the allocation of those rights and the operators eligible to participate in that procedure, are defined by that legislature itself, provided that the legislature confines itself to defining principles which do not have the effect of depriving the national regulatory authority of a substantial margin of discretion in defining the technical details of the procedure for allocating those rights and which require it merely to implement a procedure defined by that legislature.










3.


Articles 8 and 9 of Directive 2002/21, as amended by Directive 2009/140, Articles 5, 7 and 14 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), as amended by Directive 2009/140, Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, and the principle of the protection of legitimate expectations
must be interpreted as not precluding national legislation on the allocation of rights to use radio frequencies which, during a technological transition accompanying the reconfiguration of the 694-790 MHz frequency band, does not provide for an equivalence-based conversion of previous rights to use radio frequencies and thus requires an operator wishing to retain its transmission capacity to participate in a fee-based procedure or to enter into an agreement with another operator, provided that such conversion is not necessary to preserve competition in the relevant market and that the operators concerned have not received specific, unconditional and consistent guarantees from the administrative authorities that their transmission capacity will be maintained in the event of a reconfiguration of rights to use radio frequencies.










4.


Articles 8 and 9 of Directive 2002/21, as amended by Directive 2009/140, Articles 5, 7 and 14 of Directive 2002/20, as amended by Directive 2009/140, and Article 4 of Directive 2002/77
must be interpreted as not precluding a system for reconfiguring rights to use radio frequencies that does not include structural measures designed to compensate for illegalities relating to previous procedures for allocating such rights or to past conditions for operating radio frequencies, provided that other measures adopted by the competent authorities are sufficient to remedy the significant distortions of competition that could result from those illegalities.






(1)  OJ C, C/2024/2406, C/2024/2407, C/2024/2408.


ELI: http://data.europa.eu/eli/C/2025/5798/oj
ISSN 1977-091X (electronic edition)