Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti.
Date: 2017-07-26
23


In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 19 and the case-law cited).
24


It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for this Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation 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 (judgments of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 37 and the case-law cited, and of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel, C‑231/15, EU:C:2016:769, paragraph 16).
27


In that regard, it must be recalled that the need to provide an interpretation of EU law which will be of use to the national court means that the national court is bound to observe scrupulously the requirements concerning the content of a request for a preliminary ruling, expressly set out in Article 94 of the Rules of Procedure of the Court of Justice, of which the referring court should be aware (see, to that effect, judgments of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraphs 18 and 19 and the case-law cited, and of 27 October 2016, Audace and Others, C‑114/15, EU:C:2016:813, paragraph 35).
28


Thus, it is essential, as is stated in Article 94(c) of the Rules of Procedure, that the reference for a preliminary ruling itself must contain a statement of the reasons which prompted the national court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the case before the referring court.
29


It is also essential, as is provided for in Article 94(a) of the Rules of Procedure, that the order for reference itself contains, at least, an account of the facts on which the questions are based. In accordance with the case-law of the Court, those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraph 58 and the case-law cited, and order of 12 December 2013, Umbra Packaging, C‑355/13, not published, EU:C:2013:867, paragraph 23 and the case-law cited).
31


It is clear from the information submitted to the Court that the dispute in the main proceedings is characterised by factors which are all confined to the Italian State. As it is, Article 56 TFEU does not apply to such a situation (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited).
37


In the first place, it must be recalled that Article 8 of the Framework Directive places on the Member States the obligation to ensure that the NRAs take all reasonable measures aimed at promoting competition in the provision of electronic communications services, ensuring that there is no distortion or restriction of competition in the electronic communications sector and removing remaining obstacles to the provision of those services at EU level (judgments of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraph 81; of 3 December 2009, Commission v Germany, C‑424/07, EU:C:2009:749, paragraph 92, and of 7 November 2013, UPC Nederland, C‑518/11, EU:C:2013:709, paragraph 50).
38


In accordance with paragraph 1 of that article, the NRAs, when performing their regulatory tasks specified in the Framework Directive and, in particular, in the Authorisation Directive, must take all reasonable measures to achieve the objectives defined in paragraphs 2 to 4 of that article, which entail promoting competition in the provision of electronic communications networks and services, contributing to the development of the internal market and promoting the interests of the citizens of the European Union (see, to that effect, judgments of 19 June 2014, TDC, C‑556/12, EU:C:2014:2009, paragraph 39, and of 15 September 2016, Koninklijke KPN and Others, C‑28/15, EU:C:2016:692, paragraph 46).
39


Under Article 4(2) of the Competition Directive, Article 5(2), second paragraph, and Article 7(3) of the Authorisation Directive, and Article 9(1) of the Framework Directive, the rights to use radio frequencies must be assigned on the basis of objective, transparent, non-discriminatory and proportionate criteria. That condition means that those criteria are to be appropriate for attaining their objective, and do not go beyond what is necessary in order to attain that objective (see, to that effect, judgment of 23 April 2015, Commission v Bulgaria, C‑376/13, not published, EU:C:2015:266, paragraphs 65 and 84).
43


In that respect, it has already been held that the provisions of the NCRF, in particular Article 9(1) of the Framework Directive, Article 5(1) of the Authorisation Directive and Article 4(1) of the Competition Directive, preclude national measures which have the effect of freezing the structures of the national market and protecting the position of national operators already active on that market, by preventing or restricting the access of new operators to that market, unless those measures are justified by objectives of general interest and structured on the basis of objective, transparent, non-discriminatory and proportionate criteria (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraphs 95 to 107).
46


In the second place, in order to provide the referring court with a useful answer and in the event that that court finds that all the channels have been lawfully operated, it should be recalled that the general principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified (see judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23 and the case-law cited). The comparability of the situations must be determined and assessed in particular in the light of the subject matter and purpose of the measure in question. The principles and the objectives of the field to which the act relates must also be taken into account (see, to that effect, judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 26 and the case-law cited).