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.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Lenaerts
• ECLI: ECLI:EU:C:2008:59
• Docket Number: C-380/05
• Date: 31 January 2008
• Procedure Type: Reference for a preliminary ruling

Case C-380/05

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

(Reference for a preliminary ruling from the Consiglio di Stato)

(Freedom to provide services – Electronic communications – Television broadcasting activities – New common regulatory framework – Allocation of radio frequencies)

Summary of the Judgment

1. Preliminary rulings – Admissibility – Questions referred without sufficient information on the factual and legislative context

(Art. 234 EC)

2. Preliminary rulings – Admissibility – Need to provide the Court with sufficient information on the factual and legislative context

(Arts 82 EC, 86(1)EC and 234 EC)

3. Preliminary rulings – Jurisdiction of the Court

(Art. 234 EC)

4. Freedom to provide services – Electronic communications networks and services – Regulatory framework, authorisation and competition – Directives 2002/21, 2002/20 and 2002/77

(Art. 49 EC; European Parliament and Council Directives 2002/20, Arts 5(1) and (2), second subpara., and 7(3), and 2002/21, Art. 9(1); Commission Directive 2002/77, Art. 4)

1. In the context of the cooperation between the Court and national courts established by Article 234 EC, 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.

In that respect, a question referred by a national court is inadmissible where it does not give any indication as to the Community provisions which it requires to be interpreted or any explanation of the link it establishes between those provisions and the dispute in the main proceedings or the subject-matter of that dispute.

(see paras 54-56)

2. 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. Those requirements are of particular importance in the area of competition, which is characterised by complex factual and legal situations.

In that regard, questions concerning, by implication, Article 86(1) EC, read in conjunction with Article 82 EC, are inadmissible if the decision making the reference does not contain any indication regarding, inter alia, the definition of the relevant market, the calculation of the market shares held by the various undertakings operating on that market, and the supposed abuse of a dominant position.

(see paras 57-59, 61-63)

3. As regards a question referred for a preliminary ruling, where all aspects of the main proceedings before the national court are confined within only one Member State, a reply might nonetheless be useful to that national court if its national law were to require that a national of that Member State 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.

(see paras 64, 69)

4. Article 49 EC and, from the date on which they became applicable, Article 9(1) of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, Article 5(1), the second subparagraph of Article 5(2) and Article 7(3) of Directive 2002/20 on the authorisation of electronic communications networks and services, and Article 4 of Directive 2002/77 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.

(see para. 116, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

31 January 2008 (*)

(Freedom to provide services – Electronic communications – Television broadcasting activities – New common regulatory framework – Allocation of radio frequencies)

In Case C‑380/05,

REFERENCE for a preliminary ruling under Article 234 EC, from the Consiglio di Stato (Italy), made by decision of 19 April 2005, received at the Court on 18 October 2005, in the proceedings

Centro Europa 7 Srl

v

Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni,

Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni,

THE COURT (Fourth Chamber),

composed of K. Lenaerts (Rapporteur), President of the Chamber, G. Arestis, R. Silva de Lapuerta, J. Malenovský and T. von Danwitz, Judges,

Advocate General: M. Poiares Maduro,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 30 November 2006,

after considering the observations submitted on behalf of:

– Centro Europa 7 Srl, by A. Pace, R. Mastroianni and O. Grandinetti, avvocati,

– the Italian Government, by I.M. Braguglia, acting as Agent, assisted by P. Gentili, avvocato dello Stato,

– the Commission of the European Communities, by F. Benyon, E. Traversa, M. Shotter and F. Amato, acting as Agents, assisted by L.G. Radicati di Brozolo, avvocato,

after hearing the Opinion of the Advocate General at the sitting on 12 September 2007,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation, in the national terrestrial television broadcasting sector, of the provisions of the EC Treaty on freedom to provide services and competition, 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) (OJ 2002 L 108, p. 33) (‘the Framework Directive’), 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) (OJ 2002 L 108, p. 21) (‘the Authorisation Directive’), Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21) (‘the Competition Directive’), and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), in so far as Article 6 EU refers thereto.

2 The reference has been made in proceedings between Centro Europa 7 Srl (‘Centro Europa 7’) and the Ministero delle Comunicazioni, the Autorità per le garanzie nelle comunicazioni and the Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni (collectively, ‘the defendants in the main proceedings’).

Relevant provisions

Community legislation

3 The new common regulatory framework for electronic communications services, electronic communications networks, associated facilities and associated services (‘the NCRF’) consists of the Framework Directive and four specific directives, including the Authorisation Directive, which are supplemented by the Competition Directive.

The Framework Directive

4 Article 1(1) of the Framework Directive provides as follows:

‘This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community.’

5 Article 1(3) of the Framework Directive provides:

‘This Directive as well as the Specific Directives are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy.’

6 Article 2 of the Framework Directive provides:

‘For the purposes of this Directive:

(a) “electronic communications network” means transmission systems … which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed … and mobile terrestrial networks, … networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

…

(c) “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting …

…’

7 Article 8 of the Framework Directive, entitled ‘Policy objectives and regulatory principles’, provides:

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.

…

2. The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia:

…

(b) ensuring...