Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Others.
Date: 2017-07-26
35


It is not for the Court, in the context of proceedings under Article 267 TFEU, to rule on the conformity or compatibility of national provisions with EU law. The Court is, however, competent to give the national court full guidance on the interpretation of EU law in order to enable it to determine the issue of conformity or compatibility for the purposes of the case before it (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraphs 49 and 50 and the case-law cited, and order of 3 July 2014, Talasca, C‑19/14, EU:C:2014:2049, paragraph 16 and the case-law cited).
36


It is therefore appropriate for the Court, in the present case, to restrict its analysis to the provisions of EU law and provide an interpretation of the national provisions which will be of use to the national court, which has the task of determining the compatibility and conformity of the instruments of national law with EU law, for the purposes of deciding the dispute before it (see, to that effect, judgment of 31 January 2008, Centro Europa 7, C‑380/05, EU:C:2008:59, paragraph 51).
39


In that regard, it should be noted that, in the context of the cooperation between the Court and the national court and tribunals established by Article 267 TFEU, 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).
42


As regards Article 56 TFEU, it is apparent from the documents in the case file submitted to the Court, that the case in the main proceedings is characterised by factors that are all confined within Italy. 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).
50


In that regard, in the first place, it should be noted that, under Article 3(1) of the Framework Directive, the Member States are to ensure that each of the tasks assigned to the NRAs in that directive and the specific directives is undertaken by a competent body. In addition, in accordance with Article 3(2) and (3) of the Framework Directive, read in the light of recital 11 thereof, the Member States must guarantee the independence of the NRAs so that they may exercise their powers impartially, transparently and in a timely manner (see, to that effect, judgments of 3 December 2009, Commission v Germany, C‑424/07, EU:C:2009:749, paragraph 54; of 17 September 2015, KPN, C‑85/14, EU:C:2015:610, paragraph 54, and of 19 October 2016, Ormaetxea Garaiand Lorenzo Almendros, C‑424/15, EU:C:2016:780, paragraph 33).
51


While, in its initial version, the aim of Article 3 of the Framework Directive was essentially, as stated in recital 11 thereof, to guarantee the independence and impartiality of NRAs by ensuring that regulation and operation are functionally separate, the intention of the EU legislature was, by means of Directive 2009/140 and as stated in recital 13 thereof, to strengthen the independence of NRAs in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions (judgments of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni, C‑240/15, EU:C:2016:608, paragraphs 32 and 34, and of 19 October 2016, Ormaetxea Garai et Lorenzo Almendros, C‑424/15, EU:C:2016:780, paragraph 45).
53


That objective of strengthening the independence and impartiality of NRAs is expressed in Article 3(3a) of the Framework Directive (judgment of 19 October 2016, Ormaetxea Garai and Lorenzo Almendros, C‑424/15, EU:C:2016:780, paragraph 47). In accordance with the first paragraph of that provision, without prejudice to cases in which consultation and cooperation with other national authorities are required under Article 3(4) and (5), the NRAs responsible for ex-ante market regulation or for resolution of disputes between undertakings must act independently and cannot seek or take instructions from any other body in relation to the exercise of the tasks assigned to them. That provision nevertheless provides for the possibility of supervision in accordance with national constitutional law and specifies that only appeal bodies set up in accordance with Article 4 of the Framework Directive are to have the power to suspend or overturn decisions by the NRAs.
61


As a preliminary point, it should be noted 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 European Union 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).
62


In accordance with Article 8(1) of the Framework Directive, in carrying out their regulatory tasks specified in that directive and, inter alia, in the Authorisation Directive, the NRAs are to take all reasonable measures which are aimed at achieving the objectives set out in Article 8(2) to (4) of the Framework Directive, namely to promote competition in the provision of electronic communications networks and electronic communications services, to contribute to the development of the internal market and to promote 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).
63


Under Article 4(2) of the Competition Directive, the second paragraph of Article 5(2) and Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, rights of use for radio frequencies need to be allocated on the basis of criteria which must be objective, transparent, non-discriminatory and proportionate. That latter condition requires that those criteria be appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining it (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).
67


First, having regard to the objective of promoting competition, set out in Article 8(2) of the Framework Directive and to the requirements of the principle of proportionality, the sum required for eligibility for the allocation of radio frequencies must be set at an appropriate level to reflect, in particular, the value of the use of those radio frequencies, which requires account to be taken of the economic and technical situation and the competitiveness of the market in question (see, by analogy, judgments of 10 March 2011, Telefónica Móviles España, C‑85/10, EU:C:2011:141, paragraphs 27 and 28, and of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraphs 50 and 51).
68


In that regard, although the holding of an auction may constitute an appropriate method for determining the value of the radio frequencies (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 52), it must nevertheless be ensured that the fee charged for participation in the auction is not set at a level which would have the effect of impeding the access of new operators to the market (see, to that effect, judgment of 10 March 2011, Telefónica Móviles España, C‑85/10, EU:C:2011:141, paragraph 30). The latter consideration is of even greater importance in the situation, mentioned by the referring court, where the allocation of new radio frequencies is intended to remedy the unlawful exclusion of operators from the market.
69


Second, as regards the requirement that the selection procedure must be based on non-discriminatory criteria, it should be noted that the general principle of equal treatment 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 (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 situations must be assessed in particular in the light of the subject matter and purpose of the measure in question. The principles and objectives of the field to which that measure 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).
79


According to settled case-law of the Court, the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union (judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 23 and the case-law cited) and must be observed not only by the EU institutions, but also by Member States in the exercise of the powers conferred on them under EU directives (judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 30 and the case-law cited).
80


The right to rely on that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him (judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 44 and the case-law cited). In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such expectations (judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 72 and the case-law cited).