delivered on 15 December 2022 (1)

Case C‑468/20

Fastweb SpA,

Tim SpA,

Vodafone Italia SpA,

Wind Tre SpA

Autorità per le Garanzie nelle Comunicazioni,

joined parties:

Telecom Italia SpA,

Vodafone Italia SpA,

Associazione Movimento Consumatori,

Wind Tre SpA,

Assotelecomunicazioni (Asstel),

EOLO SpA,

Coordinamento delle associazioni per la tutela dell’ambiente e dei diritti degli utenti e consumatori (Codacons),

Associazione degli utenti per i diritti telefonici – A.U.S. TEL ONLUS,

Altroconsumo,

Federconsumatori

(Time frame for billing)

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Electronic communications – Consumer protection – National legislation granting the national regulatory authority the power to impose on telephone service providers a time frame for the renewal of offers and for billing – Harmonised regulatory framework – Partial and minimum harmonisation – Articles 49 and 56 TFEU – Free movement of services – Principle of proportionality – Principle of non-discrimination – Principle of equal treatment)

I.Introduction

1.In 2016, the Autorità per le Garanzie nelle Comunicazioni (the Italian Communications Regulator Authority; ‘the AGCom’) adopted a decision introducing certain measures aimed at protecting users of fixed and mobile telephony services, by promoting transparency in the market and enabling price comparisons of those services. By its request for a preliminary ruling, the Consiglio di Stato (Council of State, Italy) enquires as to the compatibility of some of those measures with EU law.

2.In particular, the referring court asks the Court whether a Member State’s authority can lawfully impose certain restrictions on telephone operators with regard to the time frames for the renewal of offers and the billing of fixed and/or mobile telephone services. Would such a measure be in compliance with the principles relating to the free movement of services laid down in Articles 49 and 56 TFEU, the provisions of the directives constituting the so-called harmonised regulatory framework for electronic communications, and some general principles of EU law such as equality, proportionality and non-discrimination?

3.In this Opinion, I will explain why such a national legislation is compatible with EU law.

II.Legal framework

A.European Union law

4.In 2002, the EU legislature adopted the so-called ‘Telecoms Package’ which included, inter alia, four ‘specific’ directives regulating various aspects of electronic communications. The relevant provisions of those directives, as amended in 2009, (2) are set out below. Those four directives – which have now been repealed (3) but are nevertheless still applicable ratione temporis in the main proceedings – will be collectively referred to as the ‘harmonised regulatory framework’ in this Opinion.

5.Article 8(1) and (4) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (4) provided:

‘1. Member States shall ensure that national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13a.

…

6.Article 3(1) of 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) (5) provided:

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

7.Under the terms of Article 8(1), (2), (4) and (5) of 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) (6):

‘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.

…

…

…

(b) ensuring a high level of protection for consumers in their dealings with suppliers …;

…

(e) addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs;

…

…

(c) safeguarding competition to the benefit of consumers …;

…

(e) taking due account of the variety of conditions relating to competition and consumers that exist in the various geographic areas within a Member State;

…’

8.Article 20(1) and (2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (7) stated:

‘1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:

…

(d) details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, …;

…

9.Article 21(1) of Directive 2002/22 provided:

‘Member States shall ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications networks and/or publicly available electronic communications services to publish transparent, comparable, adequate and up-to-date information on applicable prices and tariffs … National regulatory authorities may specify additional requirements regarding the form in which such information is to be published.’

B.National law

10.Article 2(12)(h) and (l), and (37) of Legge 14 novembre 1995, n. 481 – Norme per la concorrenza e la regolazione dei servizi di pubblica utilità. Istituzione delle Autorità di regolazione dei servizi di pubblica utilità (Law No 481 of 14 November 1995 – Rules relating to competition and the regulation of public utility services. Creation of regulatory authorities for public utility services; ‘Law No 481/1995’), sets out the tasks assigned to regulatory authorities for public utility services. Inter alia, that provision states:

‘(12) Each authority, in order to pursue the aims set out in Article 1, carries out the following tasks:

…

(h) issues directives concerning the production and the provision of services by the entities providing those services, defining the general quality standards for the services as a whole and the specific quality standards for the individual service guaranteed for users, having consulted the operators of the service and the representatives of users and consumers, if necessary differentiating them by sector and type of service; such decisions shall have the effects referred to in paragraph 37;

…

(l) publicise and disseminate information on the conditions of service performance to ensure maximum transparency, competitiveness and the possibility for intermediate or final users of making more informed choices.

(37) … the decisions of the authorities referred to in paragraph 12(h) shall amend or supplement the service regulations.’

11.Pursuant to Article 1(6)(b)(2) of Legge 31 luglio 1997, n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 of 31 July 1997 – Creation of the Italian Communications Regulator and rules on telecommunications and broadcasting systems; ‘Law No 249/1997’) the regulatory authority has the power to issue:

‘directives concerning the general service quality standards and the adoption, by each operator, of a service charter laying down minimum standards for each business segment’.

12.Articles 13, 70 and 71 of Decreto legislativo 1 agosto 2003, n. 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 of 1 August 2003 – Electronic Communications Code) are intended to transpose Article 8 of Directive 2002/21 and Articles 20 and 21 of Directive 2002/22.

III.Facts, national proceedings and the questions referred

13.On 15 March 2017, the AGCom – the authority charged by the Italian Government with, inter alia, carrying out the regulatory tasks provided for in Directives 2002/19, 2002/20, 2002/21 and 2002/22 – adopted Decision No 121/17/CONS (‘the contested decision’), introducing certain measures aimed at protecting users of fixed and mobile telephony services, by promoting transparency in the market and enabling price comparisons of those services.

14.The AGCom found that some telephone operators had amended their offers with regard to fixed telephony, for both new customers and existing customers, by introducing a contract renewal period based on four weeks rather than one month. In AGCom’s view, that new policy created confusion among customers vis-à-vis certain essential elements of their contract (such as, the time frame for billing and the renewal of the offers, and the overall cost of the service, and so on). Indeed, some offers provided for billing on a monthly basis while others provided for billing every four weeks. Moreover, according to the AGCom, the new time frame made it more difficult for consumers to compare offers. In fact, as a result of those changes, the AGCom recorded an 8.6% increase in annual costs for consumers.

15.The contested decision thus established, inter alia, that ‘for fixed telephony, the time frame for the renewal of offers and for billing [must] be at intervals of one month or multiples thereof. For mobile telephony, the time frame may not be less than four weeks. In the case of offers bundled with fixed telephony, the time frame for fixed telephony shall apply. … Mobile operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis shall inform users promptly by SMS that the offer has been renewed’.

16.By means of separate actions, the telephone operators Fastweb SpA, Tim SpA, Vodafone Italia SpA and Wind Tre SpA (‘the appellants’) challenged the contested decision before the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy). Those actions were dismissed in 2018.

17.The appellants brought an appeal against the first-instance judgments before the Consiglio di Stato (Council of State). They claimed, inter alia, that the contested decision, or the national legislation providing the basis for such a decision, was incompatible with EU law on various grounds.

18.It was in those circumstances that the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(2) Does the correct interpretation of Articles 49 and 56 TFEU, and of the harmonised regulatory framework as enshrined in Directives [2002/19, 2002/20, 2002/21 and 2002/22] – and in particular in Article 8(2) and (4) of Directive [2002/21, as amended by Directive 2009/140], Article 3 of Directive [2002/20, as amended by Directive 2009/140], and Articles 20, 21 and 22 of Directive [2002/22, as amended by Directive 2009/136] – preclude a national rule such as that inferred from the provisions of Articles 13, 70 and 71 of [Legislative Decree No 259/03] in conjunction with Article 2(12)(h) and (l) of [Law No 481/1995] and Article 1(6)(2) of [Law No 249/1997], which gives the national regulatory authority in the electronic communications sector the power to impose: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof; and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?','prefix':'(2)','indentation':2,'kind':'Paragraph','alignment':'left','bold':false,'italic':false},{‘(1) Does the correct interpretation of Article 267 TFEU require the national court, against whose decisions there is no judicial remedy under national law, to make a reference for a preliminary ruling on a question of interpretation of the relevant [EU] law in the main proceedings, even where there is no doubt as to the interpretation of the relevant EU provision – taking into account the terminology and meaning specific to [EU] law attributable to the wording of the relevant provision, the applicable European regulatory framework and its underlying objectives of protection, considering the stage of development of EU law when the relevant provision is to be applied in the national proceedings – but it is not possible to establish in detail, from a subjective point of view, with regard to the conduct of other courts, that the interpretation of the referring court is the same as the one likely to be given by the courts of the other Member States and by the Court of Justice, to which the same question is referred?','prefix':'(1)','indentation':2,'kind':'Paragraph','alignment':'left','bold':false,'italic':false},{

(4) Does the correct interpretation and application of the principles of non-discrimination and equal treatment, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in Directives [2002/19, 2002/20, 2002/21 and 2002/22] – and in particular in Article 8(2) and (4) of Directive [2002/21, as amended by Directive 2009/140], Article 3 of Directive [2002/20, as amended by Directive 2009/140], and Articles 20, 21 and 22 of Directive [2002/22, as amended by Directive 2009/136] – preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof; (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?','prefix':'(4)','indentation':2,'kind':'Paragraph','alignment':'left','bold':false,Does the correct interpretation and application of the principle of proportionality, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in Directives [2002/19, 2002/20, 2002/21 and 2002/22] – and in particular in Article 8(2) and (4) of Directive [2002/21, as amended by Directive 2009/140], Article 3 of Directive [2002/20, as amended by Directive 2009/140], and Articles 20, 21 and 22 of Directive [2002/22, as amended by Directive 2009/136] – preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof; and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?','prefix':'(3)','indentation':2,'kind':'Paragraph','alignment':'left','bold':false,'italic':false},{

Following the delivery of the Court’s judgment in Consorzio Italian Management and Catania Multiservizi, (8) the Registry of the Court of Justice sent the referring court a copy of that judgment, asking it to indicate whether it wished to maintain the request for a preliminary ruling.

By letter of 23 November 2021, the referring court informed the Court that it wished to withdraw the first question referred but to maintain the second, third and fourth questions referred.

Written observations in the present proceedings have been submitted by the appellants, Codacons, the Italian Government, as well as the European Commission.

By its questions, the referring court seeks essentially to ascertain whether EU law precludes national legislation conferring on a national regulatory authority (‘the NRA’) the power to impose on telephone services providers a time frame for the renewal of offers and for billing. The various questions are complementary in that they approach that issue from a different perspective: free movement of services, harmonised regulatory framework, and (certain) general principles of EU law. In the following pages, those EU rules and principles referred to by the Consiglio di Stato (Council of State) will be examined in turn.

By its second question, the referring court asks the Court whether the Treaty rules on the free movement of services (Articles 49 and 56 TFEU) and/or the provisions of the harmonised regulatory framework preclude national legislation empowering the NRA to impose on telephone services providers a time frame for the renewal of offers and for billing.

To answer that question, it seems to me more appropriate to begin the analysis by examining the compatibility of the national legislation at issue with the harmonised regulatory framework, and subsequently turning to the rules on the free movement of services.

At the outset, I must state that I am somewhat surprised by the approach adopted in the observations submitted by some of the parties in the present proceedings. Indeed, those parties review, one after another, the various provisions of the harmonised regulatory framework referred to in the request for a preliminary ruling, and argue that none of those provisions provides the NRAs with a valid legal basis for adopting a measure such as the contested decision.

I understand that, before the Italian courts, the appellants have contended, inter alia, that neither national law nor EU law provides a legal basis for the adoption of the contested decision. However, the referring court explains that, in its view, the contested decision is based on the provisions of national law. The text of the questions referred is also unmistakably clear in that regard. Furthermore, I observe that the position of the Consiglio di Stato (Council of State) on that point was recently confirmed by the Corte suprema di cassazione (Supreme Court of Cassation, Italy) which found that the AGCom adopted the contested decision on the basis of Article 2(20)(d) of Law No 481/1995. (9)

Thus, the issue in the present proceedings is not whether the provisions of the harmonised regulatory framework empower the NRA to adopt a measure such as the contested decision, but whether those provisions preclude national legislation conferring on the NRA the power to adopt a measure such as the contested decision.

In that regard, a particularly important point should be emphasised: the harmonised regulatory framework does not bring about, in the sector of electronic communications, complete harmonisation. In fact, in its request for a preliminary ruling, the referring court noted that, with regard to consumer-protection matters, the harmonised regulatory framework mainly identified the objectives of protection sought, and the areas of activity concerned, but left to the NRAs’ discretion the determination of the type and content of the most appropriate measures to achieve those objectives.

That is indeed correct. In that respect, it must be borne in mind that ‘consumer protection’ is, pursuant to Article 4(2)(f) TFEU, an area of shared competence between the European Union and the Member States. In accordance with Article 169(2) TFEU, when acting in that area, the European Union may adopt, depending on the circumstances, harmonisation measures under Article 114 TFEU (provided, obviously, that the conditions set out therein are satisfied), or measures which support, supplement and monitor the policy pursued by the Member States. Whereas in the first scenario complete harmonisation is possible, in the second scenario the EU act cannot prevent Member States – as stated in Article 169(4) TFEU – ‘from maintaining or introducing more stringent protective measures’.

That being said, it is true that the directives that constitute the harmonised regulatory framework had all been adopted on the basis of (what is now) Article 114 TFEU. However, it is rather clear, and as far as I can see not disputed by any of the parties, that those directives leave the national authorities with ample room for manoeuvre. Indeed, as the Court has consistently held, the harmonised regulatory framework does not provide for full harmonisation of consumer-protection aspects. (10)

That finding should, in my view, be further clarified.

Consumer protection was identified as one of the objectives pursued by the harmonised regulatory framework, (11) but that framework only provided for ‘elements’ of consumer protection. (12) The harmonisation brought about by the harmonised regulatory framework in respect of the consumer-protection aspects of the services governed by that framework was, therefore, both minimum (as regards its effects or intensity), and partial (as regards its material scope). (13)

To explain, the approximation of the Member States’ laws which the harmonised regulatory framework intended to achieve left ample scope for Member States’ action in two complementary ways. First, Member States were free to apply higher standards of consumer protection in respect of the regulatory aspects covered by the harmonised regulatory framework. Second, a fortiori, the Member States were at liberty to introduce or maintain national laws, applicable to the activities governed by the harmonised regulatory framework, that were intended to protect consumers in relation to aspects that were different and additional to those covered by the harmonised regulatory framework. (14)

Several provisions and recitals of the directives comprising the harmonised regulatory framework confirmed the significant leeway left to the Member States in this context, including the attribution of a variety of tasks and powers to the NRAs. To begin with, the NRAs’ mission was defined in very broad terms. (15) Moreover, many (if not most) provisions gave only general guidance on the type of action that NRAs were meant to take in order to achieve the specific objectives set out therein. (16) Furthermore, several provisions laid down non-exhaustive lists of the means by which the NRAs could pursue those objectives. (17)

The above is also reflected in the case-law, in which the Court emphasised the NRAs’ ‘broad discretion … to determine the need to regulate a market according to each situation on a case-by-case basis’, (18) and their ability to ‘take all reasonable measures which are aimed at achieving the objectives’ set out in the relevant provision of the harmonised regulatory framework. (19)

It may thus be true that, as the appellants claim, none of those provisions expressly gave the NRAs the power to adopt measures such as the contested decision. However, it is also true that none of those provisions precluded national legislation giving such a power to the national regulator. That is, as mentioned in point 25 above, what is really at issue in the present case.

As the Court has consistently held, in case of minimum or partial harmonisation, national legislation must – apart from, evidently, being compatible with other rules of EU law that may be applicable to the situation – not be ‘liable seriously to compromise achievement of the result prescribed by the [EU act] in question’. (20)

In the present case, with the exception of one rather trifling observation, (21) the appellants do not genuinely allege that the national legislation at issue could compromise the achievement of the objectives pursued by the harmonised regulatory framework. In fact, the national legislation at issue appears to be very much in line with the objectives pursued by the harmonised regulatory framework, which sought, inter alia, to promote effective competition in the market, (22) enhance market transparency, (23) improve citizens’ access to telecommunication services, (24) and – last, but not least – ensure a high level of consumer protection. (25)

I am of the view, therefore, that the national legislation at issue cannot be considered to be liable seriously to compromise achievement of the result prescribed by the harmonised regulatory framework. As such, it is compatible with that framework.

In its second question, the referring court also asks the Court whether the national legislation at issue is compatible with the Treaty rules on the free movement of services. That court refers to both Article 49 TFEU (‘right of establishment) and Article 56 TFEU (‘freedom to provide services’) as being possibly relevant.

In that regard, according to settled case-law, where a national measure relates to several of those freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first and may be considered together with it. (26) To that end, the objective purpose (27) and the effects (28) of the national measure are the main elements to be taken into consideration.

In the present case, in the light of the purpose and effect of the national legislation at issue, the Court may limit its analysis to Article 49 TFEU. Indeed, telephone services are, at least presently, normally provided by companies established in the Member State where the supply takes place. Among other things, to be able to provide those services, the operators need significant infrastructure.

In any event, given the similarity of the two regimes governing the right of establishment and the freedom to provide services, I fail to see how an analysis of the compatibility of the national legislation at issue with EU law under Article 56 TFEU could differ from an analysis under Article 49 TFEU. (29)

As the Court has consistently held, all measures which prohibit, impede or render less attractive the exercise of the freedom guaranteed by Article 49 TFEU must be regarded as restrictions on the freedom of establishment. (30) In particular, the concept of ‘restriction’ covers measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States. (31) Notably, a restriction on a fundamental freedom is prohibited by the TFEU even if it is of limited scope or minor importance. (32)

At the same time, however, the Court has found that national measures do not constitute ‘restrictions’ for the purposes of Article 49 TFEU if their effects on intra-EU trade are too uncertain, indirect, vague, remote, speculative or hypothetical in nature. (33)

In my view, that is indeed the case of the national legislation at issue. I fail to see how a foreign-based telephone operator would be discouraged or deterred from relocating to Italy or establishing a branch, subsidiary or other affiliated entity in that Member State, merely because the time frame for the renewal of offers and for billing cannot be below a given period (in casu, one month for fixed telephony, and four weeks for mobile telephony).

Regardless of the standpoint one may take to examine the (actual or potential) impact that the measures adopted by the AGCom could have on the telephone operators – that is, on their business models, contractual freedom, cost-structures and choice of profit margins, marketing strategies, or competitive position – I fail to see anything that could be of some significance under Article 49 TFEU. In particular, the contested decision (i) does not affect the operators’ freedom to set the tariffs as they see fit, (ii) does not entail any extra cost for them, (iii) does not affect their ability to amend the contractual terms unilaterally, and (iv) leaves them ample room to choose the most appropriate time frame (or range of time frames) for the renewal of offers and for billing, provided those periods are above the minima set out in that decision.

That said, I am not implying that national regulations that limit the companies’ ability to set the time frame for the renewal of offers and for billing could never fall within the scope of Article 49 TFEU. Indeed, particularly strict limitations could probably give rise to actual restrictions. I can think, for example, of a requirement for undertakings to bill their clients on a yearly (or half-yearly) basis which would significantly delay those undertakings’ reception of payments for the services provided. However, the contested decision introduced a marginal limitation, which moreover simply requires the operators to return to the standard period for offers and for billing they had consistently adopted until they (relatively suddenly and acting almost in concert, as far as I can see) chose to change their policy in that respect.

—

In this context, I note that, in past cases, the Court has found that some more intrusive measures, which placed limits on the pricing of the services in question (34) or created additional costs for their supply, (35) did not constitute ‘restrictions’ under the provision on free movement of services. Similarly, the Court accepted that the European Union was, pursuant to internal market rules, entitled to impose limits on the prices charged by mobile phone companies with the aim of, inter alia, protecting consumers. (36)

The concept of ‘restriction’ is certainly broad, but it cannot be stretched to cover every tiny nuisance to the manner in which undertakings operate. The purpose of the internal market rules is to *liberalise* intra-EU trade, not to *deregulate* trade. (37) Some tangible negative effect, actual or potential, on cross-border exchanges must thus be identified in order for the measure to come within the ambit of Article 49 TFEU. In proceedings such as those pending before the referring court, it would be for the appellants to prove that this is indeed the case. I note that, in the context of the present proceedings, they did not submit any plausible argument in that respect.

The mere fact – emphasised by the appellants – that the limitations introduced by the contested decision do not exist in other Member States is of no relevance in this context. In that regard, the Court has repeatedly stated that rules of a Member State do not constitute a restriction within the meaning of the EU Treaties, solely by virtue of the fact that other Member States apply less strict, or more commercially favourable, rules to providers of similar services established in their territory. (38) In addition, I observe that the fact that the conditions relating to competition between operators and the needs of consumers may vary in the different parts of the internal market was indirectly confirmed by Article 8(5)(e) of Directive 2002/21. (39)

Therefore, there is nothing in the case file to suggest that the national legislation at issue, or more specifically the measures adopted by the AGCom, might (actually or potentially) deter or discourage foreign undertakings from establishing themselves in Italy because their ability to compete effectively, from the outset, against telephone operators traditionally established in Italy could be impaired. (40) Accordingly, I take the view that those measures do not constitute a ‘restriction’ within the meaning of Article 49 TFEU.

At any rate, were the Court to disagree with my finding in that regard, I am of the view that any restriction created by the contested measure should be regarded as justified.

As the Court has consistently held, a restriction on the freedom of establishment is permissible only if, first, it is justified by an overriding reason in the public interest and, second, it respects the principle of proportionality. As regards proportionality, the national measure must be suitable to secure, in a consistent and systematic manner, the attainment of the objective pursued, and not go beyond what is necessary in order to attain it. In addition, the national measure must be proportionate *stricto sensu* inasmuch as it must strike a fair balance between the interests at stake, that is to say, the interest pursued by the State with the measure in question and the interests of the natural or legal persons adversely affected by that measure. (41)

It is well established that consumer protection constitutes one of the overriding reasons in the public interest that, in principle, may justify a national measure that restricts the free movement of services. (42)

I am also of the view that national legislation such as that at issue in the main proceedings is not disproportionate. First, the NRA’s ability to impose certain restrictions on the time frame for the renewal of offers and for billing is no doubt capable of securing the attainment of the objective pursued: it increases transparency in the market and enables consumers to better compare offers. I fully share the referring court’s considerations on this point.

Second, the referring court pointed out that (i) alternative mechanisms enabling users to make a better comparison of operators’ offers have in fact been attempted, but have proved to be ineffective, and (ii) other possible mechanisms have been suggested by the appellants but were also considered ineffective by that court. (43) Against that backdrop, I do not see any other measure which could be as effective, whilst being less restrictive vis-à-vis those operators.

Third, it seems to me that the measures at issue succeeded in striking a fair balance between the interests of the persons involved: they significantly enhance the ‘readability’ and ‘comparability’ of the offers on the market, thereby enabling consumers to make better informed choices, whilst – as mentioned in points 45 and 46 above – reducing to a minimum the interference with the rights and freedoms of the telephone operators.

As regards this last aspect, I would point out that, according to the provisions of Directive 2002/21, NRAs should ‘facilitate access by disabled users’ to electronic communications (44) and ‘ensur[e] that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality’. (45)

As far as I understand, the need to afford protection to vulnerable consumers was one of the reasons that prompted the AGCom to adopt the contested decision. In that respect, I agree with the Italian Government which emphasised the importance of providing those users with all the information required to make a fully informed decision, when they are faced with a unilateral change of the contract by the operator. (46)

Thus, in the light of the above, I propose that the Court answer the second question referred to the effect that neither the harmonised regulatory framework, nor the Treaty provisions on the free movement of services preclude national legislation conferring on the NRA the power to impose on telephone services providers a time frame for the renewal of offers and for billing.

Third and fourth questions

By its third and fourth questions – which can be dealt with together – the referring court asks essentially whether the principles of proportionality, non-discrimination and equal treatment preclude national legislation conferring on the NRA the power to impose on telephone services providers a time frame for the renewal of offers and for billing.

As I shall explain in the following passages, my answer to that question is rather simple: no, those principles do not preclude national legislation such as that at issue in the main proceedings, since that legislation does not implement EU law and, consequently, its lawfulness cannot be called into question on the basis of general principles of EU law (1). In any event, even if the Court were to disagree with me in that respect, the national legislation at issue would still be, in my view, compatible with those principles (2).

No implementation of EU law

In *TSN and AKT*, the Grand Chamber of the Court found that when a Member State introduces a higher level of protection than that provided for in a directive adopted in the field of social policy, it is not ‘implementing’ that directive for the purposes of Article 51(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’). In such a situation, that Member State is not, in other words, acting within the scope of EU law. The lawfulness of the Member State’s measure in question cannot, therefore, be assessed in the light of the provisions of the Charter. (47)

In its judgment, the Court noted, inter alia, that social policy is a shared competence under Article 2(2) TFEU. It then went on to point out that, as far as the protection of workers’ health and safety are concerned, the European Union is, pursuant to Article 153(1) and (2) TFEU, to: (i) ‘support and complement the activities of the Member States’, and (ii) ‘adopt … minimum requirements’. This second element implies, the Court added, that ‘the Member States remain free, in exercising the powers they have retained, to adopt such measures, which are more stringent than those which form the subject matter of action by the EU legislature, provided that those measures do not undermine the coherence of that action’. (48)

The Court infers from the above that the provision of the directive in question, according to which that directive does not affect Member States’ right to apply more favourable provisions, ‘does not grant the Member States an option of legislating by virtue of EU law, but merely recognises the power which they have to provide for such more favourable provisions in national law, outside the framework of the regime established by that directive’. In adopting more favourable provisions, the Member State in question was thus simply exercising a power it had *retained*. The Court also distinguished that situation from one where ‘an act of the Union gives the Member States the freedom to choose between various methods of implementation or grants them a margin of discretion which is an integral part of the regime established by that act, and from the situation in which such an act authorises the adoption, by the Member States, of specific measures intended to contribute to the achievement of the objective of that act’. (49)

In my view, the situation in the present case is comparable to that at issue in *TSN and AKT*. Whether the principles of equality, non-discrimination and proportionality are invoked as Charter-based rights, (50) or as general principles of EU law, is immaterial as to whether they can be used as possible standards for reviewing of the validity of the national legislation at issue.

As mentioned above, consumer protection is an area of shared competence, and the EU legislature – through the adoption of the harmonised regulatory framework – has brought about only a minimum and partial harmonisation of the consumer-protection aspects of that framework.

It is true that the EU legislature has more extensive powers with regard to consumer protection than with regard to social policy. Yet, that is of no relevance in the present case since, as explained, the EU legislature did not exercise those powers in full, leaving ample room for Member States’ action in this field.

Similar to *TSN and AKT*, (51) in the present case the national legislation in question also concerns an aspect of the matter (time-frames for renewals of offers and billing) that is not, directly or indirectly touched upon by the EU rules in question and, more generally, in respect of which Member States have no specific obligation under EU law. Nor does any natural or legal person (for example, the appellants) derive any right from the EU framework in question.

Moreover, in my opinion, with the national legislation at issue, the Italian Republic did not simply go beyond the minimum standards set out in the harmonised regulatory framework, but it actually acted ‘on top of’ (or ‘in addition to’) it, by laying down rules which complement that framework on aspects not governed by it.

The Italian legislature did not, therefore, implement EU law by enacting the provisions on the basis of which the AGCom adopted the contested decision. That holds true even if the national legislation at issue also contains other provisions which were, conversely, intended to implement EU law.

In that context, I hardly need to recall that, as explained above, (52) the national legislation at issue does not undermine the consistency of (or deprive of effectiveness) the system set up by the harmonised regulatory framework.

Last but not least, I must point out that, apart from the Treaty provisions on the free movement of services – which, for the reasons set out above, (53) are in my view not applicable in the present case – neither the referring court nor the parties who submitted observations refer to any other provision of EU law which could bring the matter within the scope of EU law, thereby triggering the application of the general principles of EU law discussed here.

Accordingly, I am bound to conclude that the principles of proportionality, non-discrimination and equal treatment do not preclude national legislation conferring on the NRA the power to impose on telephone services providers a time frame for the renewal of offers and for billing, given that that legislation does not fall within the scope of EU law.

However, should the Court disagree with that view, I shall now briefly explain why, even if the national legislation at issue were considered to fall within the scope of EU law, that legislation would – as far as I can see – be compatible with the principles of proportionality, non-discrimination and equal treatment.

The general principles of proportionality, non-discrimination and equal treatment

First, according to settled case-law, the principle of *proportionality* is one of the general principles of EU law underlying the constitutional traditions common to the Member States that must be respected by national legislation which falls within the scope of EU law or implements it. The principle of proportionality requires, in essence, the Member States to adopt measures that are appropriate for attaining the objectives pursued and do not go beyond what is necessary to attain them. (54)

In points 51 to 59 above, I have explained why, when assessing whether a possible restriction on the free movement of services brought about by the national legislation at issue could be justified for overriding reasons in the public interest, that legislation appeared to be proportionate. In particular, the national legislation (and, more specifically, the measures adopted by the AGCom pursuant to that legislation) appeared to be appropriate for attaining the objectives pursued by the national legislature, and also not to go beyond what is necessary for attaining them.

I fail to see any additional element that should be taken into consideration, let alone one that could change the outcome of that analysis, when the proportionate nature of the national legislation at issue is viewed through the ‘lens’ of the general principle of law, rather than through the ‘lens’ of the internal market freedoms. There is nothing in the appellants’ submissions in that regard which is specific and distinct.

Second, it is true that the principles of *non-discrimination* and of *equal treatment* represent, generally, two sides of the same coin. As the Court has consistently stated, the former is an expression of the latter, which requires that comparable situations not be treated differently and different situations not be treated alike, unless such different treatment is objectively justified. (55) However, under EU law, ‘non-discrimination’ is a rather specific concept: it concerns different treatment on the basis of certain specific prohibited grounds (such as race, sex, nationality, etc.). (56)

81.Against that backdrop, I fail to see how the present case could raise any issue concerning a possible breach of the principle of non-discrimination. Indeed, the arguments put forward by the appellants in that regard coincide with those put forward when alleging a breach of the principle of equality. In particular, they claim that the contested decision treats in a different manner categories of services which are broadly comparable: mobile telephony and fixed telephony. In their view, the different time frames for the renewal of offers and for billing set out in the contested decision are not justified by the characteristics of the two markets, which display many similarities.

82.If that is so, it seems to me that only the principle of equal treatment is relevant in the present case since it prohibits, in principle, similar situations from being treated differently, on whatever ground.

83.That said, it is for the referring court to assess whether the elements of fact and law on which the AGCom relied in its decision adequately support its conclusions with regard to the (two different) time frames for the renewal of offers and for billing imposed on telephone operators.

84.However, the elements which the referring court brought to the Court’s attention appear to show that, in line with the AGCom’s findings, the two categories of services are not comparable, account being taken of the objectives pursued by the national legislature. In particular, the referring court points to some features which are, to my mind, very pertinent in this context: the different client-base (generally, older and less accustomed to new technologies in the case of fixed telephony, and younger and more IT-friendly in the case of mobile telephony); the different way in which users could be promptly informed of the unilateral change of the contractual terms (with an SMS in case of users of mobile telephony, which is normally not feasible in case of fixed telephony); the fact that the operators’ change of policy had a greater impact on the fixed telephony market (because the mobile telephony market was already more differentiated in terms of renewal and billing periods).

85.In that connection, it is important to stress that, when adopting consumer-protection measures, the authorities are by no means required to consider average consumers, but may also adopt specific measures for the consumers who are in a particularly vulnerable position. For example, the harmonised regulatory framework includes several provisions in that respect. (57)

86.Consequently, I do not think that measures adopting higher standards of consumer protection with regard to telephone services which include a more significant proportion of vulnerable users, in comparison with those adopted with regard to the other services, infringe the principle of equality. If anything, the opposite seems to me to be true: in so far as the contested decision is motivated by the desire to take into account certain objective differences which exist between the users of the two markets, that decision appears to be a reasonable application of that principle in this field.

87.That said, I would add, in passing, that the appellants’ arguments on this point remind me of the classic ‘double-edged sword’. Indeed, in so far as the stricter regime for fixed telephony is considered to be lawful, one could go as far as to suggest that any similarity between the two markets could also encourage the AGCom to extend the regime envisaged for fixed telephony to mobile telephony.

88.In the light of the above, the answer to the third and fourth questions should be that the principles of proportionality, non-discrimination and equal treatment do not preclude national legislation conferring on the NRA the power to impose on telephone services providers a time frame for the renewal of offers and for billing. That answer is, in my view, correct regardless of whether that national legislation falls within the scope of EU law.

89.In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) to the effect that:

–Articles 49 and 56 TFUE, the provisions of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access 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), 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) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as well as the principles of equality, proportionality and non-discrimination do not preclude national legislation conferring on the national regulatory authority the power to impose on telephone services providers a time frame for the renewal of offers and for billing.

—

(1) Original language: English.

(2) Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).

(3) Repealed as from 21 December 2020 by Article 125 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).

(4) OJ 2002 L 108, p. 7.

(5) OJ 2002 L 108, p. 21.

(6) OJ 2002 L 108, p. 33.

(7) OJ 2002 L 108, p. 51.

(8) Judgment of 6 October 2021 (C‑561/19, EU:C:2021:799).

(9) See judgment of the Sezioni Unite (Joint Chambers) of that court of 23 November 2021, No 26164/22.

(10) See, to that effect, judgment of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 64 and the case-law cited).

(11) See, for example, recital 6 and Article 8(4)(b) of Directive 2002/21, and recital 2 of Directive 2002/22.

(12) Recital 49 of Directive 2002/22 (emphasis added). See also recital 7 and Article 1(2) of Directive 2002/21.

(13) On those concepts, see Opinion of Advocate General Bobek in Dzivev and Others (C‑310/16, EU:C:2018:623, points 70 to 80).

(14) See, similarly, judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco (C‑491/01, EU:C:2002:741, paragraph 66).

(15) See, inter alia, recitals 16 to 20 of Directive 2002/21.

(16) See, for example, Article 8(4) of Directive 2002/19 (which states, in essence, that the obligations to be imposed by the NRA must be ‘based on the nature of the problem identified, proportionate and justified in the light of the [relevant] objectives’), and the first subparagraph of Article 8(1) of Directive 2002/21 (according to which, ‘the [NRAs] take all reasonable measures which are aimed at achieving the [relevant] objectives … Such measures shall be proportionate to those objectives’).

(17) See, for instance, Article 8(2), Article 8(4) and Article 8(5) of Directive 2002/21 set out (which include the term ‘inter alia’). See also recital 36, in fine, of Directive 2002/21.

(18) Judgment of 3 December 2009, Commission v Germany (C‑424/07, EU:C:2009:749, paragraph 61 and the case-law cited).

(19) Ibid., paragraph 59.

(20) See, inter alia, judgment of 7 July 2016, Muladi (C‑447/15, EU:C:2016:533, paragraph 43 and the case-law cited). In other cases, the Court referred to a requirement that national legislation does not ‘undermine the practical effectiveness’ of the EU act in question. See, for example, judgment of 21 December 2016, Vervloet and Others (C‑76/15, EU:C:2016:975, paragraph 83). In my opinion, the two lines of case–law are essentially two aspects of the same coin, as demonstrated by the fact that, in both those judgments, the Court refers, as precedent, to the judgment of 23 November 2006, Lidl Italia (C‑315/05, EU:C:2006:736, paragraph 48).

(21) Fastweb states – without giving any further explanation – that, by imposing minimum time frames, the contested decision stifles competition and limits consumer choice, which goes against some of the objectives pursued by the harmonised regulatory framework. However, I struggle to see how increasing the users’ ability to understand and compare the operators’ offers would necessarily result in a less competitive market and/or reduce, to any significant extent, consumer choice. For example, Fastweb gives no indication as to how the quality and/or price of the services in question (which are indeed among the parameters on the basis of which users choose their service provider) could be meaningfully affected by the contested decision.

(22) See, inter alia, recitals 5 and 20 of Directive 2002/19, and recital 1 and Article 8(2) of Directive 2002/21.

(23) See, inter alia, recitals 16 and 22 of Directive 2002/19, recital 34 of Directive 2002/20, and Article 8(4)(d) of Directive 2002/21.

(24) See, inter alia, recital 9 of Directive 2002/19, recital 4 of Directive 2002/21, and recitals 4 and 8 of Directive 2002/22.

(25) See above, point 30 of this Opinion.

(26) See, inter alia, judgment of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 50 and the case-law cited).

(27) Ibid., paragraph 51 and the case-law cited.

(28) See, to that effect, judgment of 30 January 2020, Anton van Zantbeek (C‑725/18, EU:C:2020:54, paragraph 21).

(29)

That is often the case, see, with further references, my Opinion in Cilevičs and Others (C‑391/20, EU:C:2022:166, point 65).

See, most recently, judgment of 7 September 2022, Cilevičs and Others (C‑391/20, EU:C:2022:638, paragraph 61 and the case-law cited).

See, inter alia, judgment of 29 March 2011, Commission v Italy (C‑565/08, EU:C:2011:188, paragraph 46).

See judgments of 18 October 2012, X (C‑498/10, EU:C:2012:635, paragraph 30 and the case-law cited), and of 3 December 2020, BONVER WIN (C‑311/19, EU:C:2020:981, paragraph 26).

See, with further references, Opinion of Advocate General Hogan in VAS Shipping (C‑71/20, EU:C:2021:474, point 67 and the case-law cited), and Opinion of Advocate General Wahl in Joined Cases Venturini and Others (C‑159/12 to C‑161/12, EU:C:2013:529, point 81 and the case-law cited).

See, inter alia, judgment of 29 March 2011, Commission v Italy (C‑565/08, EU:C:2011:188, paragraph 46).

Judgment of 8 June 2010, Vodafone and Others (C‑58/08, EU:C:2010:321).

See, to that effect, judgments of 8 September 2005, Mobistar and Belgacom Mobile (C‑544/03 and C‑545/03, EU:C:2005:518 paragraph 31), and of 11 June 2015, Berlington Hungary and Others (C‑98/14, EU:C:2015:386, paragraph 36).

See, to that effect, judgment of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraph 80).

See, to that effect, judgment of 6 October 2020, Commission v Hungary (Higher education) (C‑66/18, EU:C:2020:792, paragraphs 178 and 179 and the case-law cited).

To that effect, see, recently, judgment of 22 September 2022, Admiral Gaming Network and Others (C‑475/20 to C‑482/20, EU:C:2022:714, paragraph 49 and the case-law cited).

The referring court refers to interactive guides, calculation engines and monthly publication of the overall costs of the various operators’ offers.

Article 1(1).

Article 8(2)(a). More generally, on the need to protect disabled users, see recital 8 and Article 8(4)(e) of Directive 2002/21, as well as recital 13 and Article 7, Article 22(1) and Article 23a of Directive 2002/22.

See, by analogy, judgment of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 47).

Judgment of 19 November 2019 (C‑609/17 and C‑610/17, EU:C:2019:981, especially paragraphs 54 and 55) (‘TSN and AKT’).

TSN and AKT, paragraphs 47 and 48.

TSN and AKT, paragraphs 49 to 52. For a useful elaboration on this distinction, see Opinion of Advocate General Hogan in Land Oberösterreich (Housing assistance) (C‑94/20, EU:C:2021:155, points 64 to 72).

See Articles 20, 21, 49 and 51 of the Charter.

TSN and AKT, paragraph 53. See also, more recently, judgment of 7 July 2022, Coca-Cola European Partners Deutschland (C‑257/21 and C‑258/21, EU:C:2022:529, paragraph 42).

See above, point 36 of this Opinion.

See above, points 44 to 50 of this Opinion.

See, for example, judgment of 4 October 2018, Link Logistik N&N (C‑384/17, EU:C:2018:810, paragraph 40 and the case-law cited).

See, to that effect, judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish) (C‑611/17, EU:C:2019:332).

paragraph 129 and the case-law cited), and of 19 December 2019, HK v Commission (C‑460/18 P, EU:C:2019:1119, paragraph 66 and the case-law cited).

(56) See, for example, Article 21 of the Charter and Article 18 TFEU.

(57) See, inter alia, the provisions referred to above, in point 59 of this Opinion.