Case C‑112/16

Persidera SpA

v

Autorità per le Garanzie nelle Comunicazioni
and
Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti

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

(Reference for a preliminary ruling — Electronic communications — Telecommunication services — Directives 2002/20/EC, 2002/21/EC and 2002/77/EC — Equal treatment — Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies — Taking into consideration analogue radio frequencies used unlawfully — Correspondence between the number of analogue radio frequencies held and the number of digital radio frequencies obtained)

Summary — Judgment of the Court (Fourth Chamber), 26 July 2017

1. Questions referred for a preliminary ruling—Jurisdiction of the Court—Limits—Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer—Questions bearing no relation to the subject matter of the case in the main proceedings

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling—Admissibility—Need to provide the Court with sufficient information on the factual and legislative context—Extent of the obligation in the sphere of competition

   (Art. 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

3. Approximation of laws—Telecommunications sector—Electronic communications networks and services—Authorisation and regulatory framework—Directives 2002/20, 2002/21 and 2002/77—Management of radio frequencies—Conversion of the analogue channels into digital networks—Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies—Taking into consideration analogue radio frequencies used unlawfully—Not permissible

   (European Parliament and Council Directives 2002/20, Arts 3, 5 and 7, and 2002/21, Art. 9, as amended by Directive 2009/140; Commission Directive 2002/77, Arts 2 and 4)

4. Approximation of laws—Telecommunications sector—Electronic communications networks and services—Authorisation and regulatory framework—Directives 2002/20, 2002/21 and 2002/77—Management of radio frequencies—Conversion of the analogue channels into digital networks—Determination of the number of digital radio frequencies to be granted to each operator which already has analogue radio frequencies—Correspondence between the number of analogue radio frequencies held and the number of digital radio frequencies obtained—Compliance with the principles of non-discrimination and proportionality

   (European Parliament and Council Directives 2002/20, Arts 3, 5 and 7, and 2002/21, Art. 9, as amended by Directive 2009/140; Commission Directive 2002/77, Arts 2 and 4)

1.  See the text of the decision.

   (see paras 23, 24)

2.  See the text of the decision.

   (see paras 27-29)

3.  Article 9 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, Articles 3, 5 and 7 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, and Articles 2 and 4 of Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted to the effect that they preclude a national provision which, for the purposes of converting existing analogue channels into digital networks, takes into consideration unlawfully managed analogue channels, where that leads to an unfair competitive advantage being prolonged, or even reinforced.

   (see para. 56, operative part 1)

4.  The principles of non-discrimination and proportionality must be interpreted to the effect that they preclude a national provision which, on the basis of the same conversion criterion, leads to a proportionately larger reduction in the number of digital networks assigned compared with the number of analogue channels operated to the detriment of one operator compared to its competitors, unless it is objectively justified and proportionate to its objective. The continuity of television output constitutes a legitimate objective capable of justifying such a difference in treatment. However, a provision which would lead to operators already present on the market being assigned a number of digital radio frequencies which is greater than the number that is sufficient to ensure the continuity of their television output would go beyond what is necessary to achieve that objective and would, thus, be disproportionate.

   (see para. 56, operative part 2)