Provisional text

delivered on 27 March 2025 (1)

Joined Cases C‑764/23 to C‑766/23

Cairo Network Srl (C‑764/23)

Persidera SpA (C‑766/23)

Ministero delle Imprese e del Made in Italy,

Autorità per le Garanzie nelle Comunicazioni (C‑764/23 and C‑766/23),

intervening parties:

Radiotelevisione italiana SpA (RAI),

Persidera SpA,

Mediaset SpA,

Elettronica Industriale SpA,

Premiata Ditta Borghini e Stocchetti di Torino Srl,

Europa Way Srl,

Prima TV SpA,

Associazione di Categoria Aeranti-Corallo,

Radiotelevisione italiana SpA (RAI),

Elettronica Industriale SpA,

3lettronica Industriale SpA,

Espansione Srl,

Prima TV SpA,

Cairo Network Srl,

Premiata Ditta Borghini e Stocchetti di Torino Srl,

Europa Way Srl

and

Europa Way Srl (C‑765/23)

Autorità per le Garanzie nelle Comunicazioni,

Presidenza del Consiglio dei Ministri,

Ministero dell’Economia e delle Finanze

intervening parties:

Radiotelevisione italiana SpA (RAI),

Persidera SpA,

Cairo Network Srl,

Premiata Ditta Borghini e Stocchetti di Torino Srl,

Prima TV SpA,

3lettronica Industriale SpA,

Mediaset SpA,

Elettronica Industriale SpA

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

( Reference for a preliminary ruling – Electronic communications services – Directives 2002/20/EC, 2002/21/EC and 2002/77/EC – Rights to use digital terrestrial broadcasting radio frequencies for radio and television – Conversion of rights of use – Allocation of rights of use – Fee-based procedure – Taking into consideration analogue radio frequencies used unlawfully – Independence of the national regulatory authorities – Charter of Fundamental Rights of the European Union – Article 47 – Effective judicial protection – National legislation limiting the effects of actions for annulment )

Introduction

The present requests for a preliminary ruling concern the procedure for the reconfiguration of rights of use for digital terrestrial television frequencies (‘the frequency reconfiguration’), by means of the transition from the DVB-T transmission system to the (more advanced) DVB-T2 transmission system, (2) following the reallocation of the 694-790 MHz frequency band (‘the 700 MHz frequency band’) to the fifth-generation telecommunications network (‘the 5G network’). (3)

Those requests arise from disputes between companies operating digital terrestrial television networks and the Autorità per le Garanzie nelle Comunicazioni (Regulatory Authority for Communications, Italy; ‘AGCOM’) and other public authorities, (4) concerning the procedures for the conversion of rights of use of DVB-T frequencies into rights of use of transmission capacity in national DVB-T2 multiplexes (5) and for allocating the rights to use the additional transmission capacity released as a result of the transition between DVB-T and DVB-T2 technologies (‘the additional transmission capacity’).

In that context, the question arises as to the interpretation of a number of provisions of the EU regulatory framework for electronic communications (6) and of the Charter of Fundamental Rights of the European Union (‘the Charter’) concerning, in essence, the effectiveness of judicial remedies against measures adopted in the context of the frequency reconfiguration and the powers held by AGCOM in that regard, as well as the infringement of the rights of the appellants in the main proceedings, including in the light of the principle of legitimate expectations, in the context of that reconfiguration, having regard also to the historical development of the Italian audiovisual sector.

Legal framework

European Union law

The Authorisation Directive

Article 3 of the Authorisation Directive, entitled ‘General authorisation of electronic communications networks and services’, provides, in paragraphs 1 and 2 thereof:

‘1. Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive. To this end, Member States shall not prevent an undertaking from providing electronic communications networks or services, except where this is necessary for the reasons set out in Article [52(1) TFEU].

Article 5 of that directive, entitled ‘Rights of use for radio frequencies and numbers’, states, in paragraph 2 thereof:

‘Where it is necessary to grant individual rights of use for radio frequencies and numbers, Member States shall grant such rights, upon request, to any undertaking for the provision of networks or services under the general authorisation referred to in Article 3, subject to the provisions of Articles 6, 7 and 11(1)(c) of this Directive and any other rules ensuring the efficient use of those resources in accordance with [the Framework Directive].

Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with [EU] law, the rights of use for radio frequencies and numbers shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and, in the case of radio frequencies, in accordance with the provisions of Article 9 of [the Framework Directive]. An exception to the requirement of open procedures may apply in cases where the granting of individual rights of use of radio frequencies to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as defined by Member States in conformity with [EU] law.

…’

Article 7 of that directive, entitled ‘Procedure for limiting the number of rights of use to be granted for radio frequencies’, provides, in paragraph 3 thereof:

‘Where 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. Any such selection criteria must give due weight to the achievement of the objectives of Article 8 of [the Framework Directive] and of the requirements of Article 9 of that Directive.’

Article 14 of that directive, entitled ‘Amendment of rights and obligations’, provides:

‘1. Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use or rights to install facilities may only be amended in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio frequencies. …

The Framework Directive

Article 3 of the Framework Directive, entitled ‘National Regulatory Authorities’, (7) is worded as follows:

‘1. Member States shall ensure that each of the tasks assigned to [NRAs] in this Directive and the Specific Directives is undertaken by a competent body.

3. Member States shall ensure that [NRAs] exercise their powers impartially, transparently and in a timely manner. Member States shall ensure that [NRAs] have adequate financial and human resources to carry out the task assigned to them.

3a. Without prejudice to the provisions of paragraphs 4 and 5, [NRAs] responsible for ex-ante market regulation … shall act independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing [EU] law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 4 shall have the power to suspend or overturn decisions by the [NRAs].

…’ (8)

Article 4 of that directive, entitled ‘Right of appeal’, provides, in paragraph 1 thereof:

‘Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a [NRA] has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism.

Pending the outcome of the appeal, the decision of the [NRA] shall stand, unless interim measures are granted in accordance with national law.’

Article 8 of that directive, entitled ‘Policy objectives and regulatory principles’, is worded as follows:

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the [NRAs] 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.

…

3. The [NRAs] shall contribute to the development of the internal market …

4. The [NRAs] shall promote the interests of the citizens of the European Union …’

Article 9 of that directive, entitled ‘Management of radio frequencies for electronic communications services’, provides, in paragraph 1 thereof:

‘Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory in accordance with Articles 8 and 8a. They shall ensure that spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria.

In applying this Article, Member States shall respect relevant international agreements, including the [International Telecommunications Union] Radio Regulations, and may take public policy considerations into account.’

The Competition Directive

Article 2 of the Competition Directive, entitled ‘Exclusive and special rights for electronic communications networks and electronic communications services’, states:

‘1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services.

3. Member States shall ensure that no restrictions are imposed or maintained on the provision of electronic communications services over electronic communications networks established by the providers of electronic communications services, over infrastructures provided by third parties, or by means of sharing networks, other facilities or sites without prejudice to the provisions of [Directive] 2002/19/EC, (9) [the Authorisation Directive], [the Framework Directive] and [Directive] 2002/22/EC. (10)

4. Member States shall ensure that a general authorisation granted to an undertaking to provide electronic communications services or to establish and/or provide electronic communications networks, as well as the conditions attached thereto, shall be based on objective, non-discriminatory, proportionate and transparent criteria.

Any aggrieved party should have the possibility to challenge such a decision before a body that is independent of the parties involved and ultimately before a court or a tribunal.’

Article 4 of that directive, entitled ‘Rights of use of frequencies’, provides:

‘Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with [EU] law:

1. Member States shall not grant exclusive or special rights of use of radio frequencies for the provision of electronic communications services;

Decision 2017/899

Decision 2017/899 governs the use of the 700 MHz frequency band. According to Article 1(1) of that decision:

‘By 30 June 2020, Member States shall allow the use of the [700 MHz frequency band] for terrestrial systems capable of providing wireless broadband electronic communications services …

Member States may, however, delay allowing the use of the 700 MHz frequency band for up to two years on the basis of one or more of the duly justified reasons set out in the Annex to this Decision. … Where necessary, Member States shall carry out the authorisation process or amend relevant existing rights to use the spectrum in accordance with [the Authorisation Directive], in order to allow such use.

…’

Article 5(1) of that decision is worded as follows:

‘As soon as possible and no later than 30 June 2018, Member States shall adopt and make public their national plan and schedule (“national roadmap”), including detailed steps for fulfilling their obligations under Articles 1 and 4. Member States shall draw up their national roadmaps after consulting all relevant stakeholders.’

Italian law

The provisions which are the subject matter of the present cases were introduced by Article 1(1030) to (1037) of Law No 205/2017. (11)

17.Article 1(1031) of that law provides:

‘In line with the objectives of the European and national audiovisual policy for social cohesion, media pluralism and cultural diversity, and with a view to the most efficient management of the radio spectrum permitted by the use of the most advanced technologies, all frequencies assigned nationally and locally for the digital terrestrial television service and allocated in VHF band III and 470-694 MHz shall be released according to the schedule referred to in paragraph 1032. For the purposes referred to in the first sentence, the rights of use of frequencies owned by national network operators as of the date of entry into force of this law shall be converted into rights of use of transmission capacity in new national DVB-T2 multiplexes, according to the criteria defined by [AGCOM] by 31 March 2019, at the latest, for the purpose of allocating the rights of use of the frequencies. By 31 March 2019, [AGCOM] shall establish the criteria for the allocation at national level of the rights of use of the frequencies planned pursuant to paragraph 1030 for the digital terrestrial television service to national network operators [in the 470-694 MHz UHF band], taking into account the need to limit any network transformation and implementation costs, reduce the transitional period referred to in paragraph 1032 and minimise the costs and impacts for end users. By 30 June 2019, at the latest, the [Ministero dello sviluppo economico (Ministry of Economic Development, Italy)] shall grant the rights of use of the frequencies referred to in the third sentence to national network operators on the basis of the criteria defined by [AGCOM] within the meaning of that sentence. …’

18.Article 1(1031a) of that law provides:

‘The additional transmission capacity available at national level and the terrestrial frequencies, in addition to those intended for the conversion of the rights of use referred to in paragraph 1031 and planned by [AGCOM] in the [national frequency allocation plan], to be assigned to the digital terrestrial television service for national network operators and the concessionary of the public broadcasting and multimedia service, shall be allocated by means of a fee-based procedure without further calls for tender, held by the Ministry of Economic Development by 30 November 2019, implementing the procedures established by [AGCOM] by 30 September 2019 …, on the basis of the following principles and criteria: (a) to allocate transmission capacity and frequencies on the basis of lots equal in size to half of one multiplex; (b) to set a minimum tender value on the basis of the market values identified by [AGCOM]; (c) to assess the value of the economic tenders submitted; (d) to ensure the continuity of the service, the speed of the technological transition and the quality of the technological infrastructure made available by the national network operators active in the sector, including the concessionary of the public broadcasting and multimedia service; (e) to leverage the experience of national network operators in the sector, with particular reference to the implementation of digital broadcasting networks; (f) to build structural capacity to ensure radio spectrum efficiency, professionalism and expertise in the sector, technological innovation and optimal, effective and timely use of transmission capacity and additional frequencies; (g) to make better use of the radio spectrum, taking into account the current broadcasting of high-quality content via digital terrestrial television to the vast majority of the Italian population. …’

19.Article 1(1037) of that law provides:

‘Disputes relating to the allocation of rights of use of frequencies, the invitation to tender and the other procedures referred to in paragraphs 1026 to 1036, with particular reference to the procedures for releasing frequencies for the digital terrestrial television service, shall fall within the exclusive jurisdiction of the administrative court … Due to the major national interest in the prompt release and allocation of frequencies, the annulment of acts and measures adopted in the context of the procedures referred to in paragraphs 1026 to 1036 shall not entail restitution or specific performance and any reparation due shall be made only in kind. Interim relief shall be limited to the payment of a provisional amount’.

The dispute in the main proceedings, the questions referred and the procedure before the Court

20.The appellants in the main proceedings, Cairo Network Srl, Europa Way Srl and Persidera Spa, are companies operating digital terrestrial television networks which were holders of DVB-T transmission capacity on multiplexes. (12)

21.In the context of the frequency reconfiguration, (13) the Italian legislature conferred on AGCOM the power to adopt a new national plan for the allocation of frequencies for the digital terrestrial television service, to define the criteria for the conversion of transmission rights (‘the conversion criteria’) and to allocate the rights of use of the additional transmission capacity by means of a fee-based procedure, without a competitive tender, in accordance with certain principles and criteria. (14)

22.To that end, AGCOM exercised those powers by adopting, first, Decision No 39/19/CONS, by which it drew up a new national plan for the allocation of frequencies for digital terrestrial television; (15) secondly, Decision No 129/19/CONS, by which it, on the one hand, defined the conversion criteria (16) and, on the other hand, provided for the allocation of the rights of use of the additional transmission capacity; and, thirdly, Decision No 562/20/CONS, by which that authority defined the detailed rules governing the fee-based procedure for the allocation of rights of use of the additional transmission capacity (‘the allocation procedure’), a procedure which was finally initiated by Decision No 564/20/CONS.

23.In that context, the appellants in the main proceedings obtained rights of use of transmission capacity in national DVB-T2 multiplexes in accordance with the conversion criteria (17) and acquired rights of use of the additional transmission capacity at the end of the allocation procedure. (18) However, they brought actions for annulment of several measures arising from that procedure before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) and, following the dismissal of those actions, they appealed to the Consiglio di Stato (Council of State, Italy), the referring court.

24.In order to settle the disputes brought before it, the referring court considers that it is faced with several difficulties in interpreting EU law in relation to national legislation which, in essence, limits the possibility of restitution or specific performance in the event of an appeal, undermines AGCOM’s independence, places the appellants in the main proceedings at a disadvantage, fails to take account of the historical development of the Italian audiovisual sector and infringes the legitimate expectations of Cairo Network, which had previously acquired its rights of use in a fee-based procedure.

25.In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer to the Court, in Case C‑764/23, the following questions for a preliminary ruling:

‘(1) Must EU law, and in particular Article 6 and the second part of Article 19(1) TEU, interpreted in the light of Article 47 of the [Charter], the first subparagraph of Article 4(1) of [the Framework Directive], and Article 31 of [the European Electronic Communications Code (‘the EECC’)] (19) be interpreted as precluding national legislation, such as that laid down in Italian law (Article 1(1037) of Legge n. 205/2017 (Law No 205/2017)), which, in a situation of EU-wide relevance, limits the effects of actions for annulment, by preventing restitution or specific performance, and confines interim relief to the payment of a provisional amount, thereby undermining effective judicial protection?

(2) Must EU law and, in particular, Articles 3(3) and (3a), and 8 and 9 of [the Framework Directive], … and Articles 5, 6, 8, 9 and 45 of [the EECC], be interpreted as precluding a system of the kind introduced in the Italian Republic by Article 1(1031a) of the Legge di Bilancio 2018 (2018 Budget Law), as introduced by Article 1(1105) of the Legge di Bilancio 2019 (2019 Budget Law), which deprives the independent administrative authority of its regulatory functions, or at least significantly limits them, by providing for the award of additional transmission capacity by means of a fee-based procedure, with that award being granted to the highest offer and with the participation of the incumbents?

(3) Must EU law, and in particular Articles 8 and 9 of [the Framework Directive], Articles 3, 5, 7 and 14 of [the Authorisation Directive], Articles 2 and 4 of [the Competition Directive], recitals 11 and 20 of Decision [2017/899] and the principles of fairness, non-discrimination, protection of competition and legitimate expectations, be interpreted as precluding a system such as that introduced by the relevant national legislation (Article 1(1030), (1031), (1031a), (1031b) and (1032) of Legge n. 205/2017 (Law No 205/2017)), as well as Decisions [No 39/19/CONS, No 128/19/CONS and No 564/2020/CONS] of [AGCOM] and related measures for assigning rights of use of frequencies for the digital television service, which for the purpose of converting “rights of use of frequencies” into “rights of use of transmission capacity” does not require an equivalence-based conversion, but reserves part of that capacity for a fee-based award procedure, by imposing additional costs on the operator so it ensures it retains rights that have been lawfully acquired over time?

(4) Does EU law and, in particular, Articles 8 and 9 of [the Framework Directive], Articles 3, 5, 7 and 14 of [the Authorisation Directive], Articles 2 and 4 of [the Competition Directive], recitals 11 and 20 of Decision [2017/899], the principles of fairness, non-discrimination, protection of competition and legitimate expectations, as well as the principles of proportionality and appropriateness, preclude [a system] such as that introduced by the relevant national legislation (Article 1(1030), (1031), (1031a), (1031b) and (1032) of Law No 205/2017), as well as Decisions [No 39/19/CONS, No 128/19/CONS and No 564/2020/CONS] of [AGCOM] and related measures assigning rights of use of frequencies for the digital television service, which does not adopt measures of a structural nature in order to remedy the situation of inequality established previously, particularly in view of the irregularities previously found to exist in national and supranational case-law, and does not distinguish the position of an operator that has acquired a frequency following a fee-based competitive procedure with the right to retain that frequency or, conversely, are the non-structural measures adopted by [AGCOM] appropriate and proportionate for the incumbents that originally owned the networks acquired in infringement of competition law?

(5) Does EU law and, in particular, Articles 8 and 9 of [the Framework Directive], Articles 3, 5, 7 and 14 of [the Authorisation Directive], Articles 2 and 4 of [the Competition Directive], recitals 11 and 20 of Decision [2017/899], the principles of fairness, non-discrimination, protection of competition and legitimate expectations, as well as the principles of proportionality and appropriateness, preclude [a system] such as that introduced by the relevant national legislation (Article 1(1030), (1031), (1031a), (1031b) and (1032) of Law No 205/2017), as well as Decisions [No 39/19/CONS, No 128/19/CONS and No 564/2020/CONS] of [AGCOM] and related measures assigning rights of use of frequencies for the digital television service, which does not take into account the legitimate expectations of an operator who has acquired the right of use of the frequency following a fee-based competitive procedure in which express provision was made for the right to a frequency with similar coverage and of an equivalent duration to that of the right of use?’

26.That court also decided to stay the proceedings and to refer to the Court, in Case C‑765/23, four questions for a preliminary ruling, which correspond to the first to fourth questions referred in Case C‑764/23, and, in Case C‑766/23, three questions for a preliminary ruling, two of which correspond to the second and third questions in Case C‑764/23 and the third of which is worded in a similar way to the fourth question in those cases. (20)

27.Written observations were submitted to the Court by Cairo Network, Europa Way, Persidera, Elettronica Industriale and Mediaset Spa, RAI, the Italian and Croatian Governments and the European Commission.

Analysis

28.Essentially, the questions referred for a preliminary ruling can be divided into three categories:

–the first concerns a possible infringement of the principle of effective judicial protection (first question in Cases C‑764/23 and C‑765/23);

–the second concerns a possible infringement of AGCOM’s exclusive powers (second question in Cases C‑764/23 and C‑765/23 and first question in Case C‑766/23);

–the third category concerns, in essence, the possible incompatibility of the frequency reconfiguration procedure with the EU regulatory framework for electronic communications, as regards, first, the absence of equivalence-based conversion (third question in Cases C‑764/23 and C‑765/23 and second question in Case C‑766/23), secondly, the absence of structural measures to compensate for the irregularities stemming from the development of the Italian audiovisual sector (fourth question in Cases C‑764/23 and C‑765/23 and third question in Case C‑766/23) and, thirdly, the breach of legitimate expectations in retaining the rights of use previously acquired in a fee-based procedure (21) (fifth question in Case C‑764/23). (22)

Effective judicial protection in the context of actions relating to the frequency reconfiguration

29.By the first category of questions, the referring court asks, in essence, whether EU law (23) must be interpreted as precluding national legislation (24) which limits the effects of actions against measures concerning the allocation of frequencies in the context of the frequency reconfiguration to the award of financial compensation and which confines interim relief to the payment of a provisional amount, by preventing restitution or specific performance and thus undermining effective judicial protection.

30.I would recall, in that regard, that Article 4(1) of the Framework Directive requires, inter alia, the introduction of effective mechanisms, at national level, under which any user or undertaking providing electronic communications networks or services who is affected by a decision of a NRA has the right of appeal against the decision to an appeal body that is independent and has the appropriate expertise to enable it to carry out its functions effectively. In that regard, Member States are to ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. It is in the light of that provision, interpreted in the light of Article 47 of the Charter, that the present question must be assessed, (25) without it being necessary, in the circumstances of the present case, to extend that assessment to the other provisions referred to by the referring court, in particular Article 6 and Article 19(1) TEU. (26)

31.That said, I note that Article 4 of the Framework Directive does not define the specific measures which the competent court must be able to order in the context of such an appeal. (27) Accordingly, in the absence of EU rules, it is, generally, for the Member States, in the exercise of their procedural autonomy and subject to compliance with the requirements arising from the principles of equivalence and effectiveness, to lay down the procedural rules applicable to an appeal such as that at issue in the main proceedings. (28)

32.Although, in the circumstances of the present case, the principle of equivalence does not give rise to any particular difficulty in this instance, since, as the referring court points out, the relevant national provisions apply equally to actions based on national law and to actions based on EU law, the situation is different so far as concerns the application of the principle of effectiveness. (29)

33.In that regard, it should be noted that the Court recognises, in principle, the right of Member States to determine their national procedural rules as they see fit and, consequently, to grant not direct protection but only compensatory protection. (30) The Court has nevertheless held that a national court hearing an appeal against a decision of the NRA must be able to annul the decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal. (31)

34.In this case, as regards, in the first place, the fact that it is impossible for the national court to order restitution or specific performance in relation to the irregularities found, it is true that, in the event of the unlawful allocation of rights of use of frequencies, purely financial compensation could prove unsatisfactory for the person concerned, since it would nonetheless not put an end to the unlawful situation and the objectives of protecting competition, pluralism or continuity for digital terrestrial television services would be undermined. (32) That said, it must be noted that, in the context of the reallocation of the 700 MHz frequency band, remedies such as restitution or specific performance are difficult to envisage from a technical point of view or could result in an infringement of Decision 2017/899, (33) thereby calling into question the operation of the 5G network and possibly causing radio interference in bordering States. (34)

35.In those circumstances, while, in principle, it is undesirable for national legislation to impose limits on national courts as regards the judicial remedies available to parties, I consider that the limitation of remedies to financial compensatory measures is not, in itself, capable of undermining the principle of effective judicial protection within the meaning of Article 47 of the Charter. (35) To that end, it must be shown that the prohibition of restitution or specific performance, in the light of the public interests at stake (which conflict with private interests), does not permit the implementation of an effective appeal mechanism, which it is for the referring court to ascertain.

In any event, where the referring court finds that the granting of financial compensation is able to ensure, in the circumstances of the case, respect for the right to effective judicial protection, any compensation must comply with the principle of effectiveness and, consequently, cover the entirety of the damage suffered by the parties concerned, so as to restore, at least in financial terms, the situation which would have prevailed in the absence of an infringement of EU law.

The same applies, in the second place, to the limitation of interim relief to the payment of a provisional amount. In the event that financial compensation is considered by the referring court to be insufficient to guarantee the effective judicial protection of the persons concerned, the limitation of interim relief to the payment of a provisional amount is manifestly not such as to guarantee restitution or specific performance and, consequently, risks undermining the effectiveness of those rights. (36) However, where financial compensation is considered by the referring court to be sufficient to guarantee the effective judicial protection of the persons concerned, interim relief limited to the payment of a provisional amount also appears to be appropriate in order to guarantee that protection.

In conclusion, I propose that the answer to the first question in Cases C‑764/23 and C‑765/23 should be that Article 4(1) of the Framework Directive, read in the light of Article 47 of the Charter, must be interpreted as not precluding national legislation which limits the effects of actions against measures concerning the allocation of frequencies in the context of the frequency reconfiguration to the award of financial compensation and which confines interim relief to the payment of a provisional amount, in so far as the compensation awarded is capable of covering the entirety of the damage suffered by the parties concerned, so as to restore, in financial terms, the situation which would have prevailed in the absence of an infringement of EU law.

Infringement of AGCOM’s exclusive powers

By the second category of questions, the referring court asks, in essence, whether EU law (37) must be interpreted as precluding national legislation (38) which provides that additional transmission capacity must be allocated by means of a fee-based procedure, the general characteristics of which are defined by that legislation, thereby undermining the independence of AGCOM in its capacity as NRA.

I would recall, in that regard, that the Framework Directive requires Member States to establish an independent and impartial NRA, which is entrusted, essentially, with the tasks of regulation, dispute resolution and the imposition of penalties.

As regards, in the first place, the

concept of ‘independence’

, Article 3 of that directive provides, inter alia, that the tasks assigned to NRAs are to be undertaken by a competent body and that NRAs are to act independently and are not to seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing EU law, while specifying, inter alia, that this is not to prevent supervision in accordance with national constitutional law. (39) The concept of ‘independence’ is not, however, defined by that directive. In its case-law relating to NRAs in the context of the internal energy market, the Court has nevertheless clarified the meaning of that concept, (40) stating in particular that the exclusive competence and independence of NRAs must also be guaranteed vis-à-vis the national legislature. (41) Accordingly, the Court has pointed out that the powers reserved to NRAs are executive powers that are based on the technical and specialist assessment of factual realities, while making clear that, in the exercise of those powers, NRAs are subject to principles and rules established by an equally detailed legislative framework at EU level, which limit their discretion and prevent them from making political choices. (42)

As regards, in the second place, the

tasks reserved to the NRAs

, referred to in Chapter III of the Framework Directive, the first subparagraph of Article 9(1) of that directive entrusts the ‘competent national authorities’ (43) with spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies. However, that provision leaves it to the Member States to ensure that the exercise of those tasks is based on objective, transparent, non-discriminatory and proportionate criteria. (44) In that regard, the Court, on the one hand, has held that the conduct of a selection procedure for the allocation of digital radio frequencies fell within the scope of the exercise of a regulatory task for which a NRA was competent, within the meaning of the Framework Directive (45) and, on the other hand, has found that the Member States enjoy unfettered discretion as to the establishment of competitive or comparative procedures, whether they be free of charge or fee-based. (46)

In that regard, it seems to me that, while it is not easy to identify on a case-by-case basis, based on the relevant provisions of the Framework Directive, which specific activities are entrusted

exclusively

to the NRA, (47) it is clear from those provisions that the involvement of the national legislature in defining certain aspects of the procedures for the allocation of rights of use is not excluded, but must nevertheless be subject to well-defined limits. In my view, it is true that Member States, on the one hand, may adopt rules enabling them, in compliance with EU law, to pursue their radio spectrum policies and, on the other hand, must adopt rules to ensure that NRAs comply with the obligations laid down in Article 8 of that directive. However, they must refrain from adopting measures which fall within or encroach upon the

technical competence

of NRAs. That limitation derives, in my view, not only from the specific provisions conferring certain powers on NRAs but also from the fundamental objectives and principles of those rules, such as the objective of promoting competition and the principle of non-discrimination.

In the present case, according to the division of powers established by the Italian legislature, AGCOM was competent to adopt a new

national plan for the allocation of frequencies

for the digital terrestrial television service and to define

conversion criteria

, whereas the Ministry of Business and Made in Italy was responsible for drawing up the

roadmap

for the implementation of Decision 2017/899 (48) and for launching a

fee-based procedure

, without a competitive tender, with a view to the allocation of the residual transmission capacity. Moreover, so far as is relevant in the present case, the legislature itself provided that the additional transmission capacity ‘shall be allocated by means of a fee-based procedure’ and included, among the award criteria of that procedure, that of allocating that capacity ‘on the basis of lots equal in size to half of one multiplex’, (49) which raises doubts as to interference by that legislature in AGCOM’s prerogatives.

According to the referring court, that legislature thus deprived AGCOM of the option of defining the conversion rate at the time of the reconfiguration, determining the criteria and the principles of the fee-based procedure (as regards both the size of the lots and the procedural rules) and allowing the participation of the incumbent operators in that procedure. However, according to the Italian Government, AGCOM drew up the conversion criterion independently and for purely technical reasons, (50) while the Italian legislature chose to allocate the additional transmission capacity by means of a procedure which was, on the one hand, competitive, given that EU law requires verification of the possibility of new entrants entering the market when new resources become available, (51) and, on the other hand, fee-based, in accordance with the principles of EU law, such as the most efficient use of the spectrum.

In my view, the Italian legislature’s choice to impose rules governing the procedure for the allocation of the additional transmission capacity, and in particular its fee-based nature, is not capable of encroaching on AGCOM’s exclusive powers, (52) in so far as the conditions attached to that procedure are not elements which fall within the independent technical assessment of AGCOM but rather a policy choice by that legislature, which is a matter for the referring court to determine. (53) In that regard, it is for that court to ascertain, in particular, to what extent the conditions laid down by that legislature in the context of that procedure were actually binding on that authority in drawing up the technical rules governing the frequency reconfiguration procedure and, as the case may be, whether those conditions were merely the implementation of principles already developed by AGCOM. (54)

In conclusion, I propose that the answer to the third to fifth questions referred in Case C‑764/23, the third and fourth questions in Case C‑765/23 and the second and third questions in Case C‑766/23 should be that the EU regulatory framework for electronic communications(55) must be interpreted as not precluding national legislation which imposes procedural rules for the frequency reconfiguration, in so far as those rules do not include technical conditions which fall within the exclusive competence of the NRA.

The compatibility of the frequency reconfiguration procedure

The third category of questions concerns, in essence, the compatibility of national frequency reconfiguration measures with the EU regulatory framework for electronic communications. The referring court asks, in essence, whether EU law (56) must be interpreted as precluding national legislation and national rules (57) which, in the context of the frequency reconfiguration, first, do not provide for equivalence-based conversion and reserve a part of the transmission capacity for a fee-based procedure; secondly, do not include structural measures designed to compensate for the irregularities previously brought about in the Italian market for broadcasting services and, thirdly, do not take account of the legitimate expectations entertained by an operator which had obtained rights of use of frequencies following a previous fee-based competitive procedure.

I note that, in essence, the relevant provisions of the EU regulatory framework for electronic communications lay down, among the general objectives of the rules, those of promoting and protecting competition and encouraging efficient use and ensuring the effective management of radio frequencies (58) and provide that rights of use of radio frequencies should be assigned on the basis of objective, transparent, non-discriminatory and proportionate criteria. (59) Those criteria must be respected, not only during the initial assignment, but also with every subsequent assignment, renewal or conversion of the radio frequencies. (60) Accordingly, rights of use may only be amended in objectively justified cases and in a proportionate manner. (61) With regard, more specifically, to the frequency reconfiguration procedure following the reallocation of the 700 MHz frequency band, Article 1(1) of Decision 2017/899 established, inter alia, that, where necessary, Member States are to amend relevant existing rights to use the spectrum in accordance with the Authorisation Directive.

It seems to me, therefore, that EU law permits – and, in certain cases, envisages – the modification of existing rights of use and that, in principle, none of the relevant provisions requires, in the context of a technological transition, either an equivalence-based conversion of the rights of use of frequencies previously operated or the allocation of the new frequencies created by that transition by means of calls for tenders without consideration. (62) It follows that the Member States have considerable discretion as regards the procedures for allocating or reallocating frequencies, while being required to apply objective, transparent, non-discriminatory and proportionate criteria, without the specific rules governing those procedures being defined at a later stage.

In the case-law to date based on the abovementioned provisions, the Court has ruled that the adoption of national measures granting a general authorisation to operate on the broadcasting services market only to the incumbent networks (63) and the application of different conversion coefficients to operators in a comparable situation (64) are contrary to EU law, and has held that allocation of radio frequencies free of charge is not one of the principles provided for by EU law on the basis of which selection procedures must be conducted. (65)

In the present case, in the context of the frequency reconfiguration procedure, the Italian authorities, on the one hand, applied a common conversion coefficient of 0.5 to all incumbent operators and, on the other hand, allocated the additional transmission capacity by means of a fee-based procedure based on asymmetric criteria intended to favour ‘single-network’ operators and new entrants. (66) The referring court is therefore called upon to establish whether the new rights of use of transmission capacity were granted on the basis, in particular, of non-discriminatory and proportionate criteria, in accordance with the principles referred to in point 49 of this Opinion. (67) Accordingly, that court should take into account, in particular, the characteristics and technological constraints of the frequency reconfiguration, (68) as well as the historical development of the Italian market for broadcasting services and the particular circumstances which characterised the allocation of the frequencies to the operator Cairo Network.

While it is for the referring court to rule on those particularly technical aspects, in carrying out an assessment of the facts in the main proceedings, it is nevertheless for the Court to provide it with useful guidance in that regard. In order to do so, I shall examine, first, the need for equivalence-based conversion; secondly, the need for asymmetrical structural measures to compensate for the persistent irregularities in the Italian market for broadcasting services and, thirdly, the application of the principle of legitimate expectations so far as concerns the operator Cairo Network which had acquired its rights of use of the frequencies by means of an earlier fee-based procedure.

The need for equivalence-based conversion

As regards, in the first place, the need for

equivalence-based conversion

, the referring court considers that the choice of a common conversion coefficient of 0.5 raises doubts on the ground that small operators (69) were not placed in the same position as the incumbent operators, which had several DVB-T multiplexes at their disposal.

In that regard, I note that the frequency reconfiguration in the present case did not occur through the allocation of new resources but, in essence, by ‘updating’ existing rights of use through recourse to a new and more efficient transmission system. In those circumstances, I consider that the national authorities were required, in principle, to guarantee equivalent rights to the holders of those existing rights of use – or, where that was not possible, to compensate the parties concerned for the loss suffered – before allocating new rights of use. (70) It therefore cannot be ruled out that, in order to ensure that existing transmission capacity was maintained, national authorities may have had to adopt a criterion of equivalence-based conversion. However, in order to ascertain whether those authorities were obliged to do so, the referring court must take into account, in particular, the following circumstances.

First, it will be for that court to ascertain whether, and to what extent, the application of a different conversion coefficient was technically feasible, in the light of the limited number of multiplexes available. (71)

Secondly, given that DVB-T2 multiplexes are more efficient than DVB-T multiplexes, equivalence-based conversion could result in the existing transmission capacity of the relevant operators being not only

retained

but also

increased

Thirdly, it is necessary to establish how the fee-based procedure for the allocation of frequencies, which included asymmetric conditions in order to compensate for the structural disadvantages suffered by smaller (non-incumbent) operators, enabled the latter to offset, to some extent, their disadvantaged position on the relevant market. (73)

Fourthly, it is necessary to examine whether the fact that each multiplex must be operated indivisibly could support a difference in treatment, in so far as that fact implies, in particular, that ‘single-network’ operators, which have been allocated a right of use for half a multiplex, would not be in a position to continue their activity independently, whereas incumbent operators, which have received rights of use for 2.5 multiplexes, can do so. (74)

Fifthly, it is necessary to determine whether the adoption of a conversion criterion based not on the number of operators but on the rights of use already exploited is likely to favour ‘multi-network’ operators. (75)

The need for asymmetrical measures

In the second place, as regards the need for subsequent

asymmetrical measures

, the referring court considers that the irregularities previously identified in the Italian market for broadcasting services (76) continue to have an impact on that market, in so far as the allocation of DVB-T2 multiplexes was largely based on the allocation of DVB-T multiplexes, which was itself based in part on a conversion of the rights of use of analogue channels.

In that regard, I consider that, in principle, in so far as the national courts, in particular following the rulings of the Court, (77) found that the Italian authorities infringed EU law by unlawfully allocating and retaining television frequencies for the benefit of certain operators, those infringements must be remedied. (78) However, neither the Court in those rulings nor the referring court in its decisions which gave rise to those rulings has provided precise guidance as to the measures to be taken in order to remedy the irregularities identified. Moreover, it is not clear from the orders for reference whether, and to what extent, the measures adopted subsequently have prolonged that irregular situation, (79)

63.) the present effects of which, in any event, affect each of the appellants in the main proceedings in very different ways. (80)

64.It is therefore for the referring court to verify whether the asymmetrical measures adopted by the Italian authorities in the context of the fee-based allocation procedure provided for by the Italian legislature have made it possible to rectify the irregular situation (81) or whether, as the referring court appears to consider, subsequent structural measures were necessary.

65.Without wishing to encroach on the jurisdiction of the referring court, I would point out that, in order to carry out that verification, that court must, inter alia, establish, whether the adoption of subsequent asymmetric measures was

necessary

in the light of the objective of promoting and protecting competition, which includes an analysis of any current repercussions of the aforementioned irregularities on the market for broadcasting services in Italy. To that end, it will also be necessary to verify whether additional asymmetric measures were technically

The application of the principle of legitimate expectations

66.As regards, in the third place and lastly, the application of the principle of

legitimate expectations

to the situation of Cairo Network, the referring court asks whether or not the fact that that operator had acquired the right of use of the frequency following a fee-based competitive procedure in which express provision was made for the right to a frequency with similar coverage and of an equivalent duration to those of the right of use gave rise to a legitimate expectation on its part that its transmission capacity would be retained in the context of that frequency reconfiguration. (83)

67.According to the settled case-law of the Court, the right to rely on the principle of the protection of legitimate expectations – which is one of the fundamental principles of the European Union 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 – 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 or her. 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. (84) The Court has nevertheless held that a trader may not place reliance on there being no legislative amendment whatever, but may only call into question the arrangements for such an amendment, (85) which is the situation in the present case, given that the frequency reconfiguration was, moreover, required by EU law, since the reallocation of the 700 MHz frequency band, which necessitated the frequency reconfiguration, was provided for by Decision 2017/899.

68.In the light of that case-law, it should be noted that it is true that the mere fact that an operator holds the rights to use a communications network cannot, in itself, give rise to a legitimate expectation that, in the context of the frequency reconfiguration, its rights will continue to be guaranteed or converted into rights to use equivalent transmission capacity. The position is different, however, if the competent authorities have given the operator precise and unconditional guarantees as to the safeguarding of its rights of use or as to the granting of equivalent rights in the event of such a situation.

69.In the light of the information provided to the Court by the referring court, it appears that the assurances given by the Italian authorities in the present case were capable of giving rise to a legitimate expectation on the part of the operator in question, which it is, in any event, for that court to verify. Moreover, if that fact is confirmed, that court will also be called upon to examine whether, in view of the improvement in the transmission system, the allocation of new rights of use in the context of the frequency reconfiguration procedure has enabled that operator, notwithstanding the application of a conversion criterion of 0.5, to maintain a transmission capacity equivalent to that previously available to it, thereby meeting those expectations. (86)

70.In conclusion, I propose that the answer to the third to fifth questions referred for a preliminary ruling in Case C‑764/23, the third and fourth questions in Case C‑765/23 and the second and third questions in Case C‑766/23 should be that the EU regulatory framework for electronic communications (87) must be interpreted as not precluding national legislation and national rules which, in the context of the frequency reconfiguration procedure, do not provide for the equivalence-based conversion of existing rights of use of frequencies into rights of use of transmission capacity and reserve a part of the transmission capacity for a fee-based procedure, in so far as those measures comply with the principles of non-discrimination and proportionality, having regard to the present effects of past infringements of EU law, and that the conversion criteria take into account precise and unconditional guarantees provided by the competent authorities as to the safeguarding of rights of use or as to the granting of equivalent rights of use in the context of that frequency reconfiguration.

Conclusion

71.In the light of the foregoing considerations, 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 the EU regulatory framework for electronic communications, in particular, Article 4(1) 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), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union; Article 3(3) and (3a) and Articles 8 and 9 of Directive 2002/21, as amended by Directive 2009/140; Articles 3, 5, 7 and 14 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), as amended by Directive 2009/140; Articles 2 and 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services; and recitals 11 and 20 of Decision (EU) 2017/899 of the European Parliament and of the Council of 17 May 2017 on the use of the 470-790 MHz frequency band in the Union

must be interpreted as meaning that it does not preclude national legislation which, in the context of the procedure for the reconfiguration of the rights of use of digital terrestrial television frequencies,

–limits the effects of actions against measures concerning the allocation of frequencies to the award of financial compensation and confines interim relief to the payment of a provisional amount, in so far as the compensation awarded is capable of covering the entirety of the damage suffered by the parties concerned, so as to restore, in financial terms, the situation which would have prevailed in the absence of an infringement of EU law;

–imposes the procedural rules to be followed for the frequency reconfiguration, in so far as those rules do not include technical conditions which fall within the exclusive competence of the national regulatory authority;

–does not provide for the equivalence-based conversion of existing rights of use of frequencies into rights of use of transmission capacity and reserves a part of the transmission capacity for a fee-based procedure, provided that those measures comply with the principles of non-discrimination and proportionality, having regard to the present effects of past infringements of EU law, and that the conversion criteria take into account precise and unconditional guarantees provided by the competent authorities as to the safeguarding of rights of use or as to the granting of equivalent rights of use in the context of that frequency reconfiguration.

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1Original language: French.

2As the Italian Government noted in its written observations, the transition to the DVB-T2 transmission standard results, in itself, in a significant increase of up to 100% in available transmission capacity. More specifically, each of the national DVB-T2 networks releases an estimated 37 Mbit/s of capacity, which can be increased to 40 Mbit/s without any significant loss of coverage, whereas the preceding DVB-T system released an average capacity of 19.9 Mbit/s.

3That reallocation was provided for in Article 1 of Decision (EU) 2017/899 of the European Parliament and of the Council of 17 May 2017 on the use of the 470-790 MHz frequency band in the Union (OJ 2017 L 138, p. 131). The allocation of the 700 MHz frequency band to the 5G network resulted in a significant reduction in the spectrum allocated to television broadcasting (to the extent of 30% of the band previously used).

4In this instance, the Ministero delle imprese e del Made in Italy (Ministry of Business and Made in Italy, Italy), in Cases C‑764/23 and C‑766/23, and the Presidenza del Consiglio dei Ministri (President of the Council of Ministers, Italy) and the Ministero dell’Economia e delle Finanze (Ministry of Economy and Finances, Italy), in Case C‑765/23.

5From a technical point of view, that conversion allowed for the transition from national DVB-T multiplexes to new national DVB-T2 multiplexes. A multiplex is a signal which carries a combination of several digital terrestrial television services, each multiplex permitting a number of television or radio programmes to be broadcast.

6That regulatory framework consists, in particular, 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) (OJ 2002 L 108, p. 33), 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) (‘the Framework Directive’), 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) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140 (‘the Authorisation Directive’), and of 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’).

7Under Article 2(g) of the Framework Directive, a ‘national regulatory authority’ (‘NRA’) means ‘the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive and the Specific Directives’.

8Article 3(3) and (3a) of the Framework Directive was amended by Directive 2009/140. In that regard, recital 13 of the latter directive states that ‘the independence of the [NRAs] should be strengthened in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To this end, express provision should be made in national law to ensure that, in the exercise of its tasks, a [NRA] responsible for

ex-ante

market regulation or for resolution of disputes between undertakings is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a [NRA] under the regulatory framework.’

9Directive 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) (OJ 2002 L 108, p. 7).

10Directive 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) (OJ 2002 L 108, p. 51).

11Legge n. 205 – Bilancio di previsione dello Stato per l’anno finanziario 2018 e bilancio pluriennale per il triennio 2018-2020 (Law No 205 on the estimated State budget for the 2018 financial year and the multiannual budget for the three-year period 2018-2020) of 27 December 2017 (GURI No 302 of 29 December 2017, Ordinary Supplement to GURI No 62), as amended by legge n. 145 – Bilancio di previsione dello Stato per l’anno finanziario 2019 e bilancio pluriennale per il triennio 2019-2021 (Law No 145 on the estimated State budget for the 2019 financial year and the multiannual budget for the three-year period 2019-2021) of 30 December 2018 (Ordinary Supplement No 62 to GURI No 302 of 31 December 2018; ‘Law No 205/2017’).

12In this instance, Cairo Network and Europa Way each held the rights to use one multiplex and Persidera held the rights to use five multiplexes.

13See point 1 of this Opinion.

14More specifically, that power was conferred on AGCOM under Article 1(1030) to (1037) of Law No 205/2017. The Italian legislature further entrusted the Ministry of Business and Made in Italy with drawing up the ‘roadmap’ for the implementation of Decision 2017/899 and with initiating the procedure for the allocation of the additional transmission capacity.

15That plan provided for a total of 12 national DVB-T2 frequencies and laid down conversion criteria on the basis of which the 20 national DVB-T networks were to be converted into 10 DVB-T2 multiplexes, while the two other multiplexes were to be allocated in accordance with the fee-based procedure.

16The conversion factor between the old DVB-T networks and the planned new DVB-T2 networks was set at 0.5. Consequently, in accordance with that criterion, the operators with five DVB-T networks or multiplexes (namely Radiotelevisione italiana SpA (RAI), Elettronica Industriale SpA and Persidera) obtained five ‘generic rights of use for half a [DVB-T2] multiplex’, while the operators with one DVB-T multiplex (including Cairo Network and Europa Way) each received one generic right of use for half a DVB-T2 multiplex.

17They obtained, respectively, a transmission capacity of 2.5 multiplexes (in the case of Persidera) and 0.5 multiplexes (in the case of Cairo Network and Europa Way).

18Each of them for half a multiplex.

19Directive (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).

20That question was worded as follows: ‘(3) Must EU law and, in particular, Articles 8 and 9 of [the Framework Directive], Articles 3, 5, 7 and 14 of [the Authorisation Directive], Articles 2 and 4 of [the Competition Directive], recitals 11 and 20 of Decision [2017/899], the principles of fairness, non-discrimination, protection of competition and legitimate expectations, as well as the principles of proportionality and appropriateness, be interpreted as precluding a system of the kind introduced in the Italian Republic by Article 1(1101) to (1108) of the 2019 Budget Law, Article 1(1030), (1031), (1031a), (1031c), (1032), (1033), (1034) and (1037) of the 2018 Budget Law, by Decisions [No 39/19/CONS …, No 128/19/CONS and No 129/19/CONS] of [AGCOM] and related measures for assigning rights of use of frequencies for the digital television service, which does not adopt measures of a structural nature [and –] despite the existence of compensatory and/or non-structural rebalancing measures – in order to remedy the situation of inequality established previously provides for a fee-based procedure that imposes additional costs and charges on the operator; [moreover,] does [EU] law, having regard in particular to the principles of proportionality and appropriateness, as well as the principles laid down in the judgment [of 26 July 2017, Persidera (C‑112/16, ‘the judgment in Persidera’, EU:C:2017:597)], preclude a system such as the one described, particularly in view of the overall evolution of the system and the “anomalies”, “weaknesses” and “irregularities” thereof, identified in the national and supranational case-law mentioned in the grounds of this [decision], or conversely are the non-structural measures adopted by [AGCOM] sufficient to rebalance the system?’

21That aspect concerns more specifically Cairo Network.

22Before addressing those questions, I would point out, in the first place, that, although the referring court seeks from the Court, in part, an interpretation of the EECC, the latter does not appear to me to be applicable ratione temporis

to the disputes in the main proceedings, since the provisions transposing it apply from 21 December 2020, that is to say after the facts at issue in the main proceedings (see Article 124(1) of the EECC). That said, that observation is largely devoid of practical consequences, in so far as the EECC, for the most part, merely codifies the legislative measures comprising the EU regulatory framework for electronic communications. In the second place, I consider that, for the purposes of this Opinion, it is not necessary to examine in detail the arguments raised by RAI and Mediaset as to the inadmissibility of the references for a preliminary ruling. It seems obvious to me, first, that the orders for reference set out in detail the national legal framework and the reasons which led the referring court to entertain doubts as to the compatibility of the Italian legislation at issue in the main proceedings with EU law; next, that, even though the questions referred for a preliminary ruling refer rather broadly to Italian law, the Court is in a position to answer them within the limits of its jurisdiction and, finally, that it is not obvious that the questions raised have no connection with the facts or subject matter of the dispute in the main proceedings.

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23That is to say, Article 6 and the second subparagraph of Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, the first subparagraph of Article 4(1) of the Framework Directive and Article 31 of the EECC.

24In the present case, Article 1(1037) of Law No 205/2017.

25According to the settled case-law of the Court, Article 4 of the Framework Directive is an expression of the principle of effective judicial protection safeguarded by Article 47 of the Charter, pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under EU law (see judgment of 20 April 2023, DIGI Communications, C329/21, EU:C:2023:303, paragraph 33 and the case-law cited). The Court has also stated in that regard that the interpretation of Article 4(1) of the Framework Directive must take account of the significance, as resulting from the system applied by the Charter as a whole, of that fundamental right. In particular, it should be taken into account that, whilst Article 52(1) of the Charter allows limitations on the exercise of the rights enshrined by the Charter, it nevertheless lays down that any limitation must respect the essence of the fundamental right in question and requires, in addition, that, subject to the principle of proportionality, the limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union (see judgment of 20 April 2023, DIGI Communications, C329/21, EU:C:2023:303, paragraph 40 and the case-law cited).

26Article 6 TEU is a general provision by which the European Union recognises that the Charter has the same legal value as the Treaties, makes clear that the provisions of the Charter are not in any way to extend to the competences of the European Union as defined in the Treaties and provides details of the method of interpreting the rights, freedoms and principles in the Charter and, in those circumstances, appears irrelevant for the purposes of the questions referred for a preliminary ruling (see, in particular, to that effect, judgment of 23 November 2021, IS (Illegality of the order for reference) (C‑564/19, EU:C:2021:949, paragraph 98). The second subparagraph of Article 19(1) TEU obliges Member States to provide remedies sufficient to ensure effective legal protection for individual parties in the fields covered by EU law, whereas, in the present case, it is not disputed that there is a procedure for bringing actions before independent courts in Italy and that the dispute does not concern the establishment of a legal remedy but the nature of the remedies available to the competent courts (see, to that effect, judgment of 21 December 2021, Randstad Italia, C497/20, EU:C:2021:1037, paragraphs 56 and 65 and the case-law cited). See, inter alia, in the legal literature, Scarcello, O., ‘Effective judicial protection and procedural autonomy beyond rule of law judgments: Randstad Italia’, Common Market Law Review, Vol. 59, No 5, 2022, p. 1461.

27See, to that effect, judgment of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel (C‑231/15, EU:C:2016:769, paragraph 22).

28See judgment of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel (C‑231/15, EU:C:2016:769, paragraph 23 and the case-law cited).

29According to the Court’s case-law relating to the principle of effectiveness, each case in which the question arises as to whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed in the light of the place of that provision in the proceedings as a whole, the way in which they are conducted and their particular features, before the various national authorities. In that context, it is necessary to take into consideration, where appropriate, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see judgment of 25 January 2024, Caixabank (Limitation period for the repayment of mortgage charges) (C‑810/21 to C‑813/21, EU:C:2024:81, paragraph 45 and the case-law cited)).

30According to the case-law of the Court, EU law does not have the effect of requiring Member States to establish remedies other than those established by national law, unless it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or the sole means of obtaining access to a court is effectively for individuals to break the law (see judgment of 21 December 2021, Randstad Italia, C497/20, EU:C:2021:1037, paragraph 62 and the case-law cited). The Court has also held, in essence, that, in a situation in which individuals have been harmed by the infringement of their right to an effective remedy as a result of a decision of a court of a Member State adjudicating at last instance, it is open to those individuals to hold that Member State liable, provided that the conditions relating to the sufficiently serious nature of the breach and to the existence of a direct causal link between that breach and the loss or damage sustained by the injured party are satisfied (see, to that effect, judgment of 21 December 2021, Randstad Italia, C497/20, EU:C:2021:1037, paragraph 80 and the case-law cited).

31See judgment of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel (C‑231/15, EU:C:2016:769, paragraphs 24 and 25 and the case-law cited). In this case, which concerned a tariff adjustment following a market analysis, the Court was called upon to rule on the choice between annulment ex nunc or ex tunc.

32The referring court also takes the view that the limitation of the consequences of the actions in question cannot be justified by the requirement of a prompt allocation of frequencies, since that requirement could have been satisfied by recourse to an expedited procedure, all the more so since the Italian television market has long been affected by anomalies and unlawful practices.

33Indeed, Article 1(1) of that decision required, in essence, the reallocation of the 700 MHz frequency band by 30 June 2020 or two years later on the basis of the justified reasons set out in the annex thereto. In that respect, Article 1(1037) of Law No 205/2017 introduced the limitations on the right of appeal in question ‘due to the major national interest in the prompt release and allocation of frequencies’.

34Moreover, the Commission states that, in the main proceedings, the nature of the restitution or specific performance which is sought by the appellants in the main proceedings is not specified and that, in any event, those companies have succeeded in obtaining, by means of the allocation procedure, transmission capacity equivalent to that which they sought, albeit at additional cost. However, Europa Way emphasises that in the context of the allocation procedure it received a network which is incapable of covering a significant part of the national territory and national population. Those are factors which the referring court must take into account in its assessment of the circumstances of the case.

35Furthermore, as Mediaset stated in its written observations, there are other examples in Italian law of measures, approved by the national courts, which require reparation in kind in situations involving a strong public interest, in which time is a factor of crucial importance.

36See judgment of 19 June 1990, Factortame and Others (C‑213/89, EU:C:1990:257, paragraph 21).

37Namely, Article 3(3) and (3a) and Articles 8 and 9 of the Framework Directive, and Articles 5, 6, 8, 9 and 45 of the EECC.

38In this case, Article 1(1031a) of the 2018 Budget Law, as introduced by Article 1(1105) of the 2019 Budget Law.

39See Article 3(1), (3) and (3a), first subparagraph, of the Framework Directive. As the Court has pointed out, paragraphs 3 and 3a of that article were, respectively, amended and added by the EU legislature by means of Directive 2009/140, with a view to strengthening 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, as is apparent from recital 13 of that directive (see, to that effect, judgments of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni, C‑240/15, EU:C:2016:608, paragraphs 34 and 35, and of 26 July 2017, Europa Way and Persidera, C‑560/15, ‘the judgment in Europa Way and Persidera’, EU:C:2017:593, paragraph 53 and the case-law cited).

40More specifically, it noted that the term refers in its usual meaning to a status that ensures that the body in question is able to act completely freely in relation to those bodies in respect of which its independence is to be ensured, shielded from any instructions or external influence, and that that independence in decision-making implies that, within the sphere of the regulatory duties and powers, NRAs take their own decisions autonomously and solely in the public interest, so as to ensure compliance with the objectives pursued by EU legislation, without being subject to external instructions from other public or private entities (see, to that effect, judgment of 2 September 2021, Commission v Germany (Transposition of Directives 2009/72 and 2009/73), C‑718/18, ‘the judgment in Commission v Germany (Transposition of Directives 2009/72 and 2009/73)’, EU:C:2021:662, paragraphs 108 and 109 and the case-law cited). See, also, my Opinion of 5 September 2024 in Alajärven Sähkö Oy and Others and Elenia Verkko, C‑48/23, EU:C:2024:695, points 35 to 39 and the case-law cited).

41In that case, the Court held that the powers attributed exclusively to NRAs by EU law, and their independence, must be ensured in relation to any political body, and so not only the government, but also in relation to the national legislature, which can and must establish such powers in legislative acts but cannot, however, take powers away from NRAs and attribute them to other public bodies (see judgment in Commission v Germany (Transposition of Directives 2009/72 and 2009/73), paragraph 130). It went on to state that the complete independence of NRAs from economic actors and public entities, be they administrative bodies or political bodies (and in the latter case, be they the holders of executive power or of legislative power) is instrumental in ensuring that the decisions taken by the NRAs are truly impartial and non-discriminatory, while the possibility of undertakings and economic interests connected with the government, the majority or political power being treated more favourably is excluded. Furthermore, the strict separation of NRAs from political power enables them to coordinate their actions on a long-term basis, which is necessary to meet the objectives of the EU legislation at issue (see judgment in Commission v Germany (Transposition of Directives 2009/72 and 2009/73), paragraph 112).

42See judgment in Commission v Germany (Transposition of Directives 2009/72 and 2009/73) Commission v Germany (Transposition of Directives 2009/72 and 2009/73), paragraph 132.

43I would point out that, although the initial version of that provision referred to ‘national regulatory authorities’, the version stemming from Directive 2009/140 refers more generally to ‘competent national authorities’, whereas recital 19, which corresponds to that provision, has not been amended and still refers to ‘national regulatory authorities’. While the meaning of that amendment, which was not provided for by the Commission’s proposal to amend the Framework Directive (COM/2007/0697 final), is not apparent from the travaux préparatoires, it nevertheless seems to me that the EU legislature wished to leave the Member States some discretion as to the choice of the authority with competence in the matter, without prejudging the need for certain tasks to be carried out by independent authorities.

44According to Article 8(1) of the Framework Directive, in essence, Member States, in carrying out regulatory tasks, are to ensure that NRAs take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2 to 4 of that article, which consist, inter alia, in promoting competition in the provision of electronic communications networks and services, contributing to the development of the internal market and promoting the interests of the citizens of the European Union (see, to that effect, judgment in Europa Way and Persidera, paragraph 62 and the case-law cited), by encouraging, inter alia, efficient use of radio frequencies and by excluding any discrimination in the treatment of undertakings providing electronic communications networks and services, in accordance with Article 8(2)(d) and (3)(c) of that directive.

45See judgment in Europa Way and Persidera (paragraph 55). More specifically, in the circumstances of that case, the Court held that the independence of such an authority would be jeopardised if external bodies – in that case the Minister for Economic Development and the Italian legislature – were permitted to suspend, or even annul, an on-going selection procedure for the allocation of radio frequencies conducted under the auspices of that authority, other than in the cases of supervision and appeal referred to in the first paragraph of Article 3(3a) of the Framework Directive (judgment in Europa Way and Persidera, paragraph 56).

46See judgment in Europa Way and Persidera

(paragraph 65), in which the Court stated that a fee-based allocation may prove justified in the light of the need to ensure the effective management of radio frequencies and of their important social, cultural and economic value, which the Member States must take into account under Article 9(1) of the Framework Directive, and of the spectrum scarcity of those radio frequencies. Moreover, the Court held that it is for the NRAs and not the national legislatures to balance the regulatory objectives referred to in Article 8 of that directive when defining and analysing a relevant market which may be susceptible to regulation (see, to that effect, judgment of 3 December 2009, Commission v Germany, C‑424/07, EU:C:2009:749, paragraph 91). Furthermore, in the context of the internal energy market, the Court recognised that the government has the power not only to lay down the conditions for access to the network, but also the power to decide in which cases and under which framework the NRA may define those conditions or methodologies or approve them at the request of the system operator, and in which specific cases of network use and under which conditions the NRA may, in individual cases, authorise or withhold authorisation for individual tariffs for network access (see judgment in Commission v Germany (Transposition of Directives 2009/72 and 2009/73), paragraph 114). In that judgment, the Court held that the reservation of powers to the NRA is infringed where national legislation confers directly on the Government certain powers reserved exclusively to the NRA, as well as the power to authorise the NRA to exercise those powers (paragraph 115).

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See, to that effect, Opinion of Advocate General Kokott in Europa Way and Persidera (C‑560/15, EU:C:2017:251, points 67 and 68 and the case-law cited).

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That roadmap, provided for in Article 5 of that decision, aims, according to recital 20 of the decision, to ‘facilitate the use of the 700 MHz frequency band for terrestrial wireless broadband electronic communications services while ensuring continuity for the television broadcasting services that vacate the band’.

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That criterion is set out in Article 1(1031a)(a) of Law No 205/2017. Cairo Network submits that another criterion relating to the leveraging of the ‘experience of national network operators in the sector’, laid down in Article 1(1031a)(e) thereof, according to which particular consideration should be given to the ‘implementation of digital broadcasting networks’, could also raise difficulties. However, that criterion seems to me, at first sight, to be sufficiently broad to encroach upon AGCOM’s competences, which is a matter for the referring court to ascertain.

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This is clear from the draft submitted for public consultation by AGCOM decision No 474/18/CONS of 27 September 2018, drawn up before the adoption of Law No 145/2018, which, when it introduced Article 1(1031a) of Law No 205/2017, therefore simply reproduced the conversion criterion envisaged by that authority.

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Moreover, according to that government, AGCOM, in the exercise of its reporting powers, had itself expressed to that government the need for intervention by the legislature to restructure the reservation of one third of the transmission capacity, which was reserved for local broadcasters, so as to allocate it to the reorganisation process for national broadcasting, as was apparent – well before the adoption of Law No 205/2017 – from Decision 480/14/CONS.

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See footnote 47 to this Opinion.

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See footnotes 51 and 52 to this Opinion. In that regard, the referring court is asked to verify whether, in accordance with the relevant provisions of the Framework Directive, the organisation of a selection procedure for the reallocation of radio frequencies and, above all, the drawing up of the technical criteria for that procedure are specific regulatory tasks entrusted to the NRAs and reserved for their technical and impartial competence in order, inter alia, to carry out the specific tasks assigned to them by Article 8 of that Directive, to the exclusion of any undue interference by national legislators, which must confine themselves to adopting legislative acts laying down principles and general rules relating to the allocation of digital radio frequencies, in accordance with the relevant EU legislation.

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In that regard, the referring court points out that AGCOM itself acknowledged that its examination was significantly influenced by the provisions of Law No 205/2017 and, in particular, by the need to identify the intended additional transmission capacity covered by Article 1(1031a) of that law.

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That is to say Articles 3(3) and (3a), and Articles 8 and 9 of the Framework Directive.

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In particular, Articles 8 and 9 of the Framework Directive, Articles 3, 5, 7 and 14 of the Authorisation Directive, Articles 2 and 4 of the Competition Directive, recitals 11 and 20 of Decision 2017/899, as well as the principles of fairness, non-discrimination, protection of competition, legitimate expectations, proportionality and appropriateness.

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In this case, Article 1(1030), (1031), (1031a), (1031b), (1031c), (1032), (1033), (1034), (1037) and (1101) to (1108) of Law No 205/2017, AGCOM Decisions No 39/19/CONS, No 128/19/CONS, No 129/19/CONS and No 564/2020/CONS, as well as the decisions attributing the rights of use of frequencies.

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See, in particular, Article 8(2)(b) and (d) of the Framework Directive.

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See, in particular, the second subparagraph of Article 5(2) and Article 7(3) of the Authorisation Directive, Article 9(1) of the Framework Directive, as well as Article 4(2) of the Competition Directive. Recitals 11 and 20 of Decision 2017/899 also state that, in the context of the allocation of the 700 MHz frequency band, digital terrestrial television users need long-term regulatory predictability, so that they can safeguard the sustainable provision and development of their services, and that Member States which intend to maintain digital terrestrial television should consider the option of facilitating the transition to more spectrum-efficient technologies, such as, for example, DVB-T2 technology.

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See, to that effect, the judgment in Persidera (paragraph 40). In this case, the conversion of the radio frequencies as part of the digital transition was concerned.

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See Article 14(1) of the Authorisation Directive. In addition, Article 14(2) states that Member States are not to restrict or withdraw rights to install facilities or rights of use before expiry of the period for which they were granted except where justified.

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On the contrary, as the Commission points out, Article 6 of Decision 2017/899 appears to leave a broad discretion to Member States, in that it provides that they may, where appropriate and in accordance with EU law, ensure that adequate compensation for the direct cost of the migration or reallocation of spectrum use is provided. Moreover, the annex to that decision states that the reasons for a two-year delay in reconfiguration may include ‘the financial costs of transition exceeding the expected revenue generated by award procedures’, suggesting that Member States have the option of carrying out calls for tenders for consideration.

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See, to that effect, judgment of 31 January 2008, Centro Europa 7 (C‑380/05, ‘the judgment in Centro Europa 7’, EU:C:2008:59, paragraphs 96 to 98). The Court held that such measures were liable to consolidate the restrictive effect on operators without broadcasting radio frequencies since, first, by limiting de facto the number of operators able to broadcast on the market in question, those measures were likely to hinder the provision of services in the area of television broadcasting and, secondly, had the effect of freezing the structures on the national market and protecting the position of the operators already active on that market.

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See, to that effect, the judgment in Persidera (paragraphs 47 to 49).

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See, to that effect, the judgment in Europa Way and Persidera (paragraph 64). The Court held that the principle of equal treatment also does not preclude a Member State, which previously allocated analogue radio frequencies free of charge, from subjecting the allocation of new digital radio frequencies to a fee-based selection procedure, since, on account of the technological differences characterising, on the one hand, analogue radio frequencies and, on the other, digital radio frequencies, the principle of equality of treatment does not require that they be treated identically for the purpose of their allocation (see, to that effect, judgment in Europa Way and Persidera, paragraphs 70 and 71).

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As the Italian Government points out, the frequencies to be allocated were subdivided into four lots, each corresponding to a right of use equal in size to half of one multiplex, and were divided into three categories: the first category (comprising one lot) was reserved for the participation of new entrants and entities formerly holding a single DVB-T network; the second (comprising one lot) was reserved for the participation of the aforementioned entities and of Persidera (with operators in the first two categories benefiting from a reduction factor of 50% of the minimum price set for each lot); and the third (comprising the two remaining lots) was open to participation by all the players on the market. In addition, AGCOM redefined the ceiling on the rights of use which could be allocated to each operator, from a maximum of 5 multiplexes out of 20 in the DVB-T system to a maximum of 3 multiplexes out of 12 in the DVB-T2 system. RAI also states that, by Decision No 25/23/CONS, AGCOM reserved for those entities which had not participated in the fee-based procedure (in particular Europa Way) a separate, non-fee-based procedure for the allocation of multiplex No 12.

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By contrast, I consider that, in principle, the application of objective and transparent criteria does not give rise to doubts in this case, since the frequency reconfiguration procedure is based on criteria which leave no discretion to the administration and are clearly defined in the Law and in the implementing measures adopted by AGCOM or by the Ministry of Business and Made in Italy.

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See, to that effect, the judgment in Persidera (paragraph 55).

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The referring court refers on several occasions to ‘small operators’, an expression which appears to cover all ‘single-network’ operators.

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See, in particular, footnote 62 to this Opinion.

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In that regard, it is apparent from the orders for reference that AGCOM considered, in essence, that a mathematical conversion factor of 0.54 was technically possible, but was not applied because it would have resulted in the allocation of all 12 new DVB-T2 networks by means of conversion free of charge, which would have left no network capable of being allocated by means of the fee-based procedure provided for by the national legislature.

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In those circumstances, a conversion criterion more favourable to small operators would not be justified on the basis of the proportionality criterion but might be justified on the basis of the non-discrimination criterion, where the referring court confirms the need to adopt asymmetrical measures in favour of small operators. For example, Europa Way submits that it was disadvantaged because it had obtained transmission rights on a network (multiplex No 12) which is incapable of covering a significant part of the national territory and population and that it was the only operator to have always broadcast using DVB-T2 technology, so that the application of the 0.5 conversion criterion caused it a greater loss than that of the other operators.

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The Italian Government observes that that any disadvantaged operators could have also offset those disadvantages by choosing to opt for a commercial agreement with other operators holding similar rights of use rather than the fee-based allocation procedure. However, Europa Way emphasises that the increase in the number of multiplexes entirely available to ‘multi-network’ operators corresponds to the allocation of half a multiplex to ‘single-network’ operators, thereby imposing, for the management of a multiplex, a ‘forced marriage’ between two operators that previously carried out their activity completely autonomously and independently and creating an imbalance between the various operators.

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In the context of the transition from analogue networks to digital networks, the Court held that the fact that it is technically impossible to divide the radio frequencies could, for the purposes of avoiding fractional results, justify the assignment of a lower or a higher number of digital networks compared with the number of analogue channels operated (see, to that effect, the judgment in Persidera, paragraph 54). In the present case, the appellants in the main proceedings point out that the conversion factor of 0.5 places small operators at a disadvantage because it is technically impossible to divide up the frequencies, which means that operators with half a multiplex have to enter into agreements with other operators, thereby preventing them from managing the frequencies independently.

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The Court has already objected to the application of a conversion rate which, although formally a single rate, still led to proportionately different results between RAI and Mediaset, on the one hand, and Persidera, on the other (the judgment in Persidera, paragraphs 48 and 49). Although this is not the situation in the cases in the main proceedings, I wonder whether a strict proportionality criterion in the allocation of DVB-T2 networks (according to which each multiplex operated previously corresponds to half a new multiplex) is sufficient to guarantee the objective of promoting competition and the principle of equal treatment, since that criterion allows the major operators to maintain, in absolute terms, their position on the market.

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In essence, that court found that three types of irregularities had affected the regulation of the Italian market for broadcasting services: first of all, RAI and Mediaset, prior to the transition to digital terrestrial television, irregularly owned analogue channels ‘in breach of’ the anti-concentration thresholds laid down by national law; next, Europa 7 (now Europa Way) was granted rights without obtaining, in practice, a frequency which actually allowed it to broadcast (that situation was the subject matter of the judgment in Centro Europa 7, as well as the judgment of the European Court of Human Rights of 7 June 2012, Centro Europa 7 S.r.l. and Di Stefano v. Italy, CE:ECHR:2012:0607JUD003843309), and, lastly, during the transition to digital terrestrial television, on the one hand, a procedure for the allocation of the new frequencies free of charge was first suspended and then annulled by the Italian legislature and, on the other hand, the conversion coefficients used for the digital transfer had disadvantaged Persidera by comparison with RAI and Mediaset (those irregularities were the subject matter, respectively, of the judgments in Europa Way and Persidera and Persidera).

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Namely the judgments in Centro Europa 7, Europa Way and Persidera and Persidera.

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In the judgment in Persidera, for example, the Court held that, in the circumstances of the case, a single multiplex may have been sufficient to enable operators such as RAI and Mediaset to ensure the continuity of their three analogue channels with a comparable quality, and that the assignment to those operators of a second multiplex went beyond what was necessary for that purpose (the judgment in Persidera, paragraph 55).

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In that regard, it should be noted that the Italian authorities had already adopted measures to compensate for the anomalies affecting the Italian analogue television market, such as imposing specific temporary obligations on RAI and Mediaset or reserving a preferential position for their competitors in the procedures for allocating new rights of use. However, those compensatory measures did not concern Persidera, since the irregularity affecting it came to light at a later stage and that it anyway enjoys the maximum rights of use permitted under Italian anti-trust rules.

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80As is apparent from the case file, and it is for the referring court to examine this matter, first, Europa Way ultimately obtained a DVB-T multiplex, which corresponds to the rights of use which it would, in any event, have been able to obtain at the time of the digital transfer (it nevertheless emphasises the unsuitability of that multiplex); secondly, Persidera already held, before the 700 MHz frequency band was reallocated, the maximum number of DVB-T multiplexes which an operator may hold under Italian law and it retained such a position after the transition to DVB-T2 technology; and, finally, Cairo Network does not appear to be directly affected by the same irregularities, since that operator entered the market subsequently, during the tendering procedure launched in the course of 2014, following which it obtained the rights to use its frequencies.

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81In that regard, the Italian Government argues, inter alia, that AGCOM had acknowledged that, in order to comply with national and EU judicial decisions, it was impossible to envisage subsequent measures of a structural nature, which would have ultimately overlapped and applied concurrently with the measures adopted between 2005 and 2012.

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82For example, in view of the limited number of multiplexes available, an increase in the conversion coefficient for small operators, in particular by means of equivalence-based conversion, would have necessarily entailed a reduction in the conversion coefficient for ‘multi-network’ operators, which could be technically complicated or even impracticable.

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83That court pointed out that that operator had been allocated rights of use for frequencies for DVB systems (DVB-T or its subsequent technological developments) following a fee-based procedure in 2014, when it was well known that some of the frequencies covered by that procedure would subsequently be subject to the reallocation of the 700 MHz frequency band, and that the call for tenders had expressly provided that when the frequencies were released the successful bidder would obtain a frequency equivalent (in terms of coverage and duration) to that which had been allocated to it.

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84See Europa Way and Persidera (paragraphs 79 and 80 and the case-law cited).

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85See judgment of 20 December 2017, Global Starnet (C‑322/16, EU:C:2017:985, paragraph 47 and the case-law cited). In other contexts but to the same effect, the Court has held that the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (judgment of 3 September 2015, A2A, C‑89/14, EU:C:2015:537, paragraph 38 and the case-law cited) and that where a prudent and circumspect economic operator could have foreseen that the adoption of a measure is likely to affect his or her interests, he or she cannot plead that principle if the measure is adopted and that, furthermore, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the national authorities in the exercise of their discretionary power will be maintained (judgment of 10 September 2009, Plantanol, C‑201/08, EU:C:2009:539, paragraph 53 and the case-law cited). See, also, my recent Opinion in Secab (C-423/23, EU:C:2025:63, points 52 and 53 and the case-law cited).

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86By contrast, if the referring court’s examination leads it to conclude that Cairo Network received equivalent transmission capacity only at the end of the fee-based allocation procedure, it will be necessary to examine the need to compensate that operator for any costs incurred in retaining that capacity.

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87Specifically, Articles 8 and 9 of the Framework Directive, Articles 3, 5, 7 and 14 of the Authorisation Directive, Articles 2 and 4 of the Competition Directive and recitals 11 and 20 of Decision 2017/899.