Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni and Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni.
Date: 2008-01-31
49. It is not the task of the Court, in preliminary ruling proceedings, to rule upon the compatibility of provisions of national law with Community law or to interpret national legislation or regulations (see Case C‑151/02 Jaeger  [2003] ECR I‑8389, paragraph 43, and Case C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraph 24 and the case-law cited).
50. The Court has, however, repeatedly held that it is competent to give the national court full guidance on the interpretation of Community law in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case C‑292/92 Hünermund and Others  [1993] ECR I‑6787, paragraph 8, and Enirisorse , paragraph 24).
51. It is therefore appropriate for the Court, in the present case, to restrict its analysis to the provisions of Community law by providing an interpretation of them which will be of use to the national court, which has the task of determining the compatibility of the provisions of national law with Community law, for the purposes of deciding the dispute before it.
52. Secondly, it must be recalled that, according to settled case-law, it is solely for the national court before which the 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 (Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑466/04 Acereda Herrera  [2006] ECR I‑5341, paragraph 47).
53. None the less, the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation of a Community rule 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 ( Bosman , paragraph 61; Acereda Herrera , paragraph 48; and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25).
54. In that regard, the decision making the reference must set out the precise reasons why the national court was unsure as to the interpretation of Community law and why it considered it necessary to refer questions to the Court for a preliminary ruling. Against that background, it is essential that the national court provide at the very least some explanation of the reasons for the choice of the Community provisions which it requires to be interpreted and of the link it establishes between those provisions and the national legislation applicable to the dispute in the main proceedings (order in Case C‑167/94 Grau Gomis and Others  [1995] ECR I‑1023, paragraph 9; Joined Cases C‑453/03, C‑11/04, C‑12/04 and C‑194/04 ABNA and Others  [2005] ECR I‑10423, paragraph 46; Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑1891, paragraph 34; and Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 33).
57. Thirdly, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the referring court should define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others  [1993] ECR I‑393, paragraph 6; Case C‑341/95 Bettati  [1998] ECR I‑4355, paragraph 67; Case C‑67/96 Albany International  [1999] ECR I‑5751, paragraph 39; and Cipolla and Others , paragraph 25).
58. Those requirements are of particular importance in the area of competition, which is characterised by complex factual and legal situations (see Telemarsicabruzzo and Others , paragraph 7; Bettati , paragraph 68; and Albany International , paragraph 39).
60. In accordance with the Court’s case‑law, a Member State infringes the prohibitions laid down by those two provisions where the undertaking in question, merely by exercising the special or exclusive rights conferred on it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (Joined Cases C‑180/98 to C‑184/98 Pavlov and Others [2000] ECR I‑6451, paragraph 127; Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 39; and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 23).
62. Consequently, it must be held that, in so far as it relates to the Treaty provisions on competition, the second question is inadmissible (see, to that effect, Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, paragraphs 25 to 29).
64. Fourthly, it is necessary to determine whether the Court has jurisdiction in the present case to give a ruling on Article 49 EC, since it is common ground that all aspects of the main proceedings are confined within only one Member State.
65. National legislation such as that at issue in the main proceedings, which applies without distinction to Italian nationals and to nationals of other Member States, is generally likely to fall within the scope of the provisions on freedom to provide services established by the Treaty only to the extent to which it applies to situations related to intra-Community trade (see, to that effect, Case 286/81 Oosthoek’s Uitgeversmaatschappij  [1982] ECR 4575, paragraph 9, and Case C‑6/01 Anomar and Others  [2003] ECR I‑8621, paragraph 39).
66. It is possible, in the main proceedings, that undertakings established in Member States other than the Italian Republic have been or would be interested in providing the services concerned (see, to that effect, Case C‑87/94 Commission v Belgium  [1996] ECR I‑2043, paragraph 33, and Case C‑458/03 Parking Brixen  [2005] ECR I‑8585, paragraph 55).
67. The finding of a link with intra-Community trade will be presumed if the market in question has a certain cross-border interest (Case C‑507/03 Commission  v Ireland  [2007] ECR I‑0000, paragraph 29), which it is for the national court to determine.
69. Such a reply might be useful to the national court if its national law were to require that an Italian national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation (Case C‑448/98 Guimont  [2000] ECR I‑10663, paragraph 23; Joined Cases C‑515/99, C‑519/99 to C‑524/99 and C‑526/99 to C‑540/99 Reisch and Others [2002] ECR I‑2157, paragraph 26; Anomar and Others , paragraph 41; Servizi Ausiliari Dottori Commercialisti , paragraph 29; and Cipolla and Others , paragraph 30).
78. In order to provide an answer which is of use to the national court, it should be recalled that the Treaty does not require national monopolies having a commercial character to be abolished completely, but requires them to be adjusted in such a way as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States (Case C‑189/95 Franzén  [1997] ECR I‑5909, paragraph 38 and the case-law cited).
79. However, Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State (Joined Cases C‑544/03 and C‑545/03 Mobistar and Belgacom Mobile  [2005] ECR I‑7723, paragraph 30).
80. In the area of electronic communications networks and services, those principles were implemented by the NCRF.
81. Article 8 of the Framework Directive places on the Member States the obligation to ensure that the national regulatory authorities 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 level.
95. In that regard, the successive application of the transitional arrangements structured in favour of the incumbent networks in Article 3(7) of Law No 249/1997 and Article 1 of Decree-Law No 352/2003 had the effect of preventing operators without broadcasting radio frequencies from accessing the market in question.
96. The view must also be taken that, by issuing a general authorisation to operate on the broadcasting services market only to the incumbent networks, Article 23(5) of Law No 112/2004 consolidated the restrictive effect confirmed in the preceding paragraph.
97. First, by limiting de facto the number of operators able to broadcast on the market in question, those measures are and/or were likely to hinder the provision of services in the area of television broadcasting.
98. Secondly, those measures have and/or have had the effect of freezing the structures on the national market and protecting the position of the operators already active on that market.
99. Consequently, Article 49 EC and, from the date on which they became applicable, Article 9(1) of the Framework Directive, Article 5(1) of the Authorisation Directive and point 1 of Article 4 of the Competition Directive preclude such measures unless they are justified.
100. In that respect, it is clear from the case-law of the Court that a licensing system which restricts the number of operators in the national territory is capable of being justified by general-interest objectives (see, to that effect, Placanica and Others , paragraph 53), on condition that the restrictions resulting from them are appropriate and do not go beyond what is necessary to attain those objectives.
101. Thus, the NCRF expressly allows the Member States, under Article 1(3) of the Framework Directive, to adopt or maintain, in compliance with Community law, provisions pursuing general-interest objectives, in particular relating to audio‑visual policy.
102. Likewise, the first subparagraph of Article 5(2) of the Authorisation Directive allows the Member States to grant rights to the use of radio frequencies on an individual basis with a view to complying with the objective of the efficient use of radio frequencies, as referred to by the Framework Directive.
10 3. However, as the Advocate General stated in points 34 and 37 of his Opinion, in order for such arrangements, which generally adversely affect Article 49 EC and the NCRF, to be justified they must not only comply with general-interest objectives but also be structured on the basis of objective, transparent, non‑discriminatory and proportionate criteria (see, to that effect, Placanica and Others , paragraph 49 and the case-law cited).
104. Accordingly, Article 9(1) of the Framework Directive provides that the Member States are to ensure that the allocation and assignment of radio frequencies by the national regulatory authorities are based on objective, transparent, non‑discriminatory and proportionate criteria.
105. Furthermore, where it is necessary to grant individual rights to the use of radio frequencies, those rights must be granted, under the second subparagraph of Article 5(2) of the Authorisation Directive, ‘through open, transparent and non‑discriminatory procedures’.
106. Likewise, pursuant to Article 7(3) of the Authorisation Directive, ‘[w]here the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non-discriminatory and proportionate’.
107. That requirement is backed up by point 2 of Article 4 of the Competition Directive, under which ‘the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non‑discriminatory and proportionate criteria’.