Colt Technology Services SpA and Others v Ministero della Giustizia and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 16 March 2023

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

16 March 2023 (*)

(Reference for a preliminary ruling – Electronic communications networks and services – Directive (EU) 2018/1972 – Article 13 – Conditions attached to the general authorisation – Annex I, Part A, point 4 – Enabling of legal interception by competent national authorities – Article 3 – General objectives – National legislation on the reimbursement of costs associated with interception activities that telecommunications operators are ordered by the judicial authorities to carry out – Absence of full reimbursement mechanism – Principles of non-discrimination, proportionality and transparency)

In Case C‑339/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 11 May 2021, received at the Court on 31 May 2021, in the proceedings

Colt Technology Services SpA,

Wind Tre SpA,

Telecom Italia SpA,

Vodafone Italia SpA

v

Ministero della Giustizia,

Ministero dello Sviluppo Economico,

Ministero dell’Economia e delle Finanze,

Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria,

Procura della Repubblica presso il Tribunale di Cagliari,

Procura della Repubblica presso il Tribunale di Roma,

Procura della Repubblica presso il Tribunale di Locri,

and

Ministero della Giustizia,

Ministero dello Sviluppo Economico,

Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria,

Procura della Repubblica presso il Tribunale di Cagliari,

Procura della Repubblica presso il Tribunale di Roma

v

Wind Tre SpA,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, D. Gratsias, M. Ilešič (Rapporteur), I. Jarukaitis and Z. Csehi, Judges,

Advocate General: A.M. Collins,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 18 May 2022,

after considering the observations submitted on behalf of:

– Colt Technology Services SpA, by F. Fioretti, M. Giustiniani and N. Moravia, avvocati,

– Wind Tre SpA, by B. Caravita di Toritto, S. Fiorucci and R. Santi, avvocati,

– Telecom Italia SpA, by D. Gallo, G. Vercillo and A. Zoppini avvocati,

– Vodafone Italia SpA, by S. D’Ercole, N. Palombi and F. Pignatiello, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and C. Colelli, G. Galluzzo and P. Gentili, avvocati dello Stato,

– the European Commission, by L. Malferrari and P. Messina, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 October 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 18, 26, 49, 54 and 55 TFEU, Articles 3 and 13 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36) and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in several sets of proceedings between (i), on the one hand, Colt Technology Services SpA, Wind Tre SpA, Telecom Italia SpA and Vodafone Italia SpA (together ‘the telecommunications operators concerned’) and, on the other hand, the Ministero della Giustizia (Ministry of Justice, Italy), the Ministero dello Sviluppo economico (Ministry of Economic Development, Italy) and the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finance, Italy), as well as, in certain cases, depending on the procedure, the Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria (Public Prosecutor’s Office at the Court of Appeal, Reggio Calabria, Italy), the Procura della Repubblica presso il Tribunale di Cagliari (Public Prosecutor’s Office at the District Court, Cagliari, Italy), the Procura della Repubblica presso il Tribunale di Roma (Public Prosecutor’s Office at the District Court, Rome, Italy), and the Procura della Repubblica presso il Tribunale di Locri (Public Prosecutor’s Office at the District Court, Locri, Italy) and between (ii), on the one hand, the Ministero della Giustizia (Ministry of Justice), the Ministero dello Sviluppo economico (Ministry of Economic Development), the Procura Generale della Repubblica presso la Corte d’appello di Reggio Calabria (Public Prosecutor’s Office at the Court of Appeal, Reggio Calabria), the Procura della Repubblica presso il Tribunale di Cagliari (Public Prosecutor’s Office at the District Court, Cagliari) and the Procura della Repubblica presso il Tribunale di Roma (Public Prosecutor’s Office at the District Court, Rome) and, on the other hand, Wind Tre, concerning national legislation which, in return for a fixed annual charge, requires all telecommunications operators active in the national territory to provide, at the request of the judicial authorities, telecommunications interception services.

Legal context

European Union law

3 According to recital 1 of Directive 2018/1972:

‘Directives … 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) (OJ 2002 L 108, p. 21)], 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) (OJ 2002 L 108, p. 33)] … have been substantially amended. Since further amendments are to be made, those Directives should be recast in the interests of clarity.’

4 Article 3 of that directive, entitled ‘General objectives’, provides, in paragraphs 1 and 2 thereof:

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive, the national regulatory and other competent authorities take all reasonable measures which are necessary and proportionate for achieving the objectives set out in paragraph 2. …

…

2. In the context of this Directive, the national regulatory and other competent authorities as well as [the Body of European Regulators for Electronic Communications (BEREC)], the [European] Commission and the Member States shall pursue each of the following general objectives, which are not listed in order of priority:

…

(b) promote competition in the provision of electronic communications networks and associated facilities … and in the provision of electronic communications services and associated services;

(c) contribute to the development of the internal market by removing remaining obstacles to, …, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the [European] Union, …’

5 Article 12 of that directive, entitled ‘General authorisation for electronic communications networks and services’, provides, in the first sentence of paragraph 1:

‘Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive.’

6 Article 13 of Directive 2018/1972, entitled ‘Conditions attached to the general authorisation and to the rights of use for radio spectrum and for numbering resources, and specific obligations’, is worded as follows:

‘1. The general authorisation for the provision of electronic communications networks or services and the rights of use for radio spectrum and rights of use for numbering resources may be subject only to the conditions listed in Annex I. Such conditions shall be non-discriminatory, proportionate and transparent. …

…

3. The general authorisation shall contain only conditions which are specific for that sector and are set out in Parts A, B and C of Annex I and shall not duplicate conditions which are applicable to undertakings by virtue of other national law.

…’

7 Annex I to that directive sets out, in Part A and in accordance with its title, the ‘General conditions which may be attached to a general authorisation’. Those include, in point 4, the following condition:

‘Enabling of legal interception by competent national authorities in accordance with Regulation (EU) 2016/679 [of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1)] and Directive 2002/58/EC [of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37)]’.

8 Under Article 125 thereof, Directive 2018/1972, inter alia, repealed and replaced Directive 2002/20, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘Directive 2002/20’), and Directive 2002/21, as amended by Directive 2009/140 (‘Directive 2002/21’), with effect from 21 December 2020, references to Directives 2002/20 and 2002/21 being construed as references to Directive 2018/1972 and to be read in accordance with the correlation table in Annex XIII to that directive.

Italian law

9 Article 28 of decreto legislativo n. 259 – Codice delle comunicazioni elettroniche (Decree-Law No 259 on the Electronic Communications Code) of 1 August 2003 (GURI No 214 of 15 September 2003; ‘the Electronic Communications Code’), entitled ‘Conditions attached to the...