Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

5 March 2026 (*)

( Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/20/EC – Article 13 – Fees for rights of use for digital television frequencies – Directive 2002/21/EC – Article 8 – General objectives – Proportionality – Criterion for assessing fees linked to the collection of a predetermined amount of annual revenue with a financial objective )

In Case C‑10/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), made by decision of 23 December 2024, received at the Court on 9 January 2025, in the proceedings

Elettronica Industriale SpA

v

Ministero delle Imprese e del Made in Italy,

intervening party:

Persidera SpA,

THE COURT (Eighth Chamber),

composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Third Chamber, acting as Judge of the Eighth Chamber, and S. Rodin, Judge,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Elettronica Industriale SpA, by D. Franzini, M. Molino and G. Rossi, avvocati,

–        the Italian Government, by S. Fiorentino, acting as Agent, and by E. De Bonis and F. Montanaro, avvocati dello Stato,

–        the European Commission, by G. Conte and O. Gariazzo, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 4(1) of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (‘the Authorisation Directive’), of Article 8 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 (‘the Framework Directive’), and of the principle of proportionality.

2        The request has been made in proceedings between Elettronica Industriale SpA and the Ministero delle Imprese e del Made in Italy (Ministry of Enterprise and Made in Italy, Italy) concerning the validity of two decrees of that ministry fixing fees for rights of use for digital television frequencies, respectively, as regards the first of those decrees, for 2014, 2015 and 2016, and, as regards the second, for 2017.

 Legal context

 European Union law

 The Authorisation Directive

3        Recital 32 of the Authorisation Directive stated as follows:

‘In addition to administrative charges, usage fees may be levied for the use of radio frequencies and numbers as an instrument to ensure the optimal use of such resources. Such fees should not hinder the development of innovative services and competition in the market. This Directive is without prejudice to the purpose for which fees for rights of use are employed. Such fees may for instance be used to finance activities of national regulatory authorities that cannot be covered by administrative charges. …’

4        Article 1(1) of that directive provided:

‘The aim of this Directive is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the Community.’

5        Article 2(2) of the directive defined the phrase ‘general authorisation’ as meaning ‘a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with [the Authorisation Directive]’.

6        Article 13 of the directive, entitled ‘Fees for rights of use and rights to install facilities’, provided:

‘Member States may allow the relevant authority to impose fees for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property which reflect the need to ensure the optimal use of these resources. Member States shall ensure that such fees shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives in Article 8 of [the Framework Directive].’

 The Framework Directive

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

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

…

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

(a)      ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality;

(b)      ensuring that there is no distortion or restriction of competition in the electronic communications sector, including the transmission of content;

…

(d)      encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.

3.      The national regulatory authorities shall contribute to the development of the internal market by inter alia:

(a)      removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level;

(b)      encouraging the establishment and development of trans-European networks and the interoperability of pan-European services, and end-to-end connectivity;

…’

 Italian law

8        Article 35 of Legislative Decree No 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 establishing the Electronic Communications Code) of 1 August 2003 (GURI No 214 of 15 September 2003, Ordinary Supplement No 150), in the version applicable to the dispute in the main proceedings, relating to fees for the grant of rights of use and installation of infrastructure, provided, in essence, that the fees for the grant of rights of use for radio frequencies or numbers were to be fixed by the Ministero dello Sviluppo Economico (Ministry of Economic Development, Italy), now the Ministry of Enterprise and Made in Italy, on the basis of the criteria laid down by the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy) and that the fees were to be transparent, objectively justified, proportionate to the aim pursued, non-discriminatory and were to take account of the objectives set out in Article 13 of the Authorisation Directive.

9        Article 1(172) to (174) of Legge No 208 – Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge di stabilità 2016) (Law No 208 laying down provisions for drawing up the annual and multiannual State budget (Stability Law 2016)) of 28 December 2015 (GURI No 302 of 30 December 2015, Ordinary Supplement No 70; ‘Law No 208/2015’) provides:

‘172      The amount of fees for the rights of use for digital television frequencies, due from network operators at national or local level, shall be determined, by decree of the Ministry of Economic Development … in a transparent, non-discriminatory and objective manner, proportionate in relation to the intended purpose, on the basis of the geographical scope of the permit, the market value of the frequencies, taking into account incentives for the sale of transmission capacity for competition purposes, and the use of innovative technologies.

173      The system of fees referred to in paragraph 172 shall also apply to years for which the fees due have not been determined.

174      Total annual revenues of at least EUR 32.8 million must be generated for the State budget from the amount of fees referred to in paragraph 172 and the administrative fees for national and local operators, holders of general authorisations for the activity of digital terrestrial television network operator and for the use of radio frequencies for radio links …’.

 The dispute in the main proceedings and the question referred for a preliminary ruling

10      Elettronica Industriale, an Italian telecommunications network operator, brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), the referring court, seeking the annulment of the decrees of the Ministry of Enterprise and Made in Italy of 4 August 2016 and 13 April 2017 relating to the fixing of fees for rights of use for digital television frequencies, respectively, as regards the first of those decrees, for 2014, 2015 and 2016, and, as regards the second, for 2017. Those decrees were adopted on the basis of Law No 208/2015. According to that operator, those decrees are incompatible with the requirements arising from the Authorisation Directive in particular.

11      That court states at the outset that the decrees at issue in the main proceedings implement the objective set out in Article 1(172) of Law No 208/2015, namely to open up the market to new operators and to promote competition, by calculating the fees for the rights of use for digital television frequencies in the light of the geographical scope of the permit and the market value of the frequencies, taking into account incentives for the sale of transmission capacity for competition purposes, and the use of innovative technologies. Those decrees provide, in that regard, for a variable percentage discount on the fee in favour of network operators which are not vertically integrated or which, in the previous year, sold their transmission capacity to third parties not related to the same corporate group.

12      Those decrees are therefore justified in the light of the requirements of the Authorisation Directive and the Framework Directive, in so far as they comply, in particular, with the objectives referred to in Article 8(2)(b) of the Framework Directive.

13      That said, according to the referring court, in so far as Article 1(174) of Law No 208/2015 requires ‘total annual revenues for the State budget of at least EUR 32.8 million [to] be generated’, that article could be regarded as being contrary to those directives and to the principle of proportionality, as interpreted by the Court.

14      That provision requires sectoral authorities to generate, by levying fees for the rights of use for digital television frequencies, specific annual revenue to meet public finance targets without providing for any obligation to reinvest that revenue in order to achieve the objectives set out in EU legislation. Thus, that provision could be regarded as imposing fees for the provision of electronic communications networks and services ‘other’ than those provided for in Article 13 of the Authorisation Directive, which that article is specifically intended to prevent.

15      The referring court considers that the decrees at issue in the main proceedings fix, arbitrarily and without justification, a fee the level of which is supposed to enable income of a financial nature to be obtained, the amount of that revenue having been previously established by law. Thus, the Italian legislature established, ex ante, a certain economic result to be achieved by means of the fees imposed on digital television operators, irrespective of the establishment of a mechanism for verifying, ex post, whether the objectives pursued by the Authorisation Directive and the Framework Directive have been achieved.

16      Furthermore, that court is uncertain whether a review of compliance with the principle of proportionality, as required by Article 13 of the Authorisation Directive, may be carried out where the reference parameter consists not of the amount of the fees imposed on each operator, but of the total annual amount, predefined by the national legislation, which all those fees must generate.

17      In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘[Do] Article 13 of the [Authorisation Directive], in conjunction with Article 8 of [the Framework Directive], as well as the principle [of EU law] of proportionality, preclude the introduction, by the legislature of a Member State, of a criterion for calculating “fees for granting rights of use and rights to install facilities”, imposed on operators with a view to generating specific overall tax revenues and thus related to general public finance targets, regardless of the need to ensure the proper functioning of the electronic communications market and the protection of users, and must the national court disapply that provision?’

 Consideration of the question referred

18      By its question, the referring court asks, in essence, whether Article 13 of the Authorisation Directive, read in conjunction with Article 8 of the Framework Directive, and the principle of proportionality must be interpreted as precluding national legislation which imposes a criterion for calculating fees for rights of use for digital television frequencies, determined on the basis of a predefined amount of annual revenue to be derived from those fees and, therefore, of general objectives of a financial nature.

19      If that question is answered in the affirmative, the referring court asks whether it is required to disapply that national legislation.

20      According to Article 1 of the Authorisation Directive, the aim of the directive is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the European Union.

21      To that end, that directive lays down not only rules governing the procedures for granting general authorisations or rights to use radio frequencies or numbers and the content of those authorisations but also rules setting out the nature and scope of the financial payments related to those procedures which Member States may impose on undertakings in the electronic communications services sector (judgments of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 29, and of 6 October 2020, Vodafone España, C‑443/19, EU:C:2020:798, paragraph 29).

22      More specifically, in accordance with Article 13 of that directive, entitled ‘Fees for rights of use and rights to install facilities’, Member States may allow the relevant authority to impose fees for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property which reflect the need to ensure the optimal use of these resources. It follows from Article 13 that Member States must ensure that those fees are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and take into account the objectives in Article 8 of the Framework Directive, which are, inter alia, the promotion of competition and the efficient use of radio frequencies (judgments of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 46, and of 6 October 2020, Vodafone España, C‑443/19, EU:C:2020:798, paragraph 50).

23      In those circumstances, the purpose of ensuring that operators make optimal use of scarce resources to which they have access, such as digital television frequencies, means that the fee must be fixed at an appropriate level to reflect, inter alia, the value of the rights of use of those resources, which requires account to be taken of the economic and technical situation of the market concerned (see, to that effect, judgments of 10 March 2011, Telefónica Móviles España, C‑85/10, EU:C:2011:141, paragraph 28, and of 6 October 2020, Vodafone España, C‑443/19, EU:C:2020:798, paragraph 53).

24      The Court thus held that an excessive fee is likely to discourage the use of the scarce resources at issue and thereby result in under-utilisation of those resources (judgment of 10 March 2011, Telefónica Móviles España, C‑85/10, EU:C:2011:141, paragraph 29).

25      That said, Article 13 of the Authorisation Directive lays down the requirements with which Member States must comply in determining the amount of a fee, should they decide to impose such a fee for the rights of use of scarce resources, without thereby expressly providing a specific method for determining the amount thereof (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraph 49).

26      Moreover, as recital 32 of that directive confirms, that directive does not contain any provision determining the use to be made of the proceeds of the fees levied for rights of use for radio frequencies.

27      In the present case, Article 1(172) of Law No 208/2015, which is, according to the referring court, implemented by the decrees in question in the main proceedings, provides that the amount of the fees for the rights to use digital television frequencies is to be determined ‘in a transparent, non-discriminatory and objective manner, proportionate in relation to the intended purpose, on the basis of the geographical scope of the permit, the market value of the frequencies, taking into account incentives for the sale of transmission capacity for competition purposes, and the use of innovative technologies’.

28      That provision, having regard to its wording, appears to transpose Article 13 of the Authorisation Directive, as interpreted by the Court’s case-law, into Italian law.

29      That said, the referring court notes that the decrees in question in the main proceedings must also comply with Article 1(174) of Law No 208/2015, which requires that the fees fixed by those decrees provide the Italian State with annual revenues of at least EUR 32.8 million. In the view of that court, the fact that the imposition of those charges pursues an objective of a financial nature, namely to ensure a minimum annual amount of revenue for the State, leads to the conclusion that the national legislature imposed fees ‘other’ than those provided for by the Authorisation Directive, which would run counter to the Court’s case-law relating to Article 13 of that directive.

30      In that regard, in the first place, the Court has held that Member States may not, within the framework of Directive 2002/20, levy any charges or fees in relation to the provision of networks and electronic communication services other than those provided for by that directive (judgments of 17 December 2015, Proximus, C‑454/13, EU:C:2015:819, paragraph 20, and of 6 October 2020, Vodafone España, C‑443/19, EU:C:2020:798, paragraph 32).

31      In the judgments referred to in the preceding paragraph, the Court’s assessment related to the scope of Article 13 of the Authorisation Directive by reference to the events giving rise to the charges at issue in the cases that resulted in those judgments.

32      The Court thus observed that, for the provisions of the Authorisation Directive to be applicable to a national charge, the trigger for that charge must be linked to a general authorisation procedure, which safeguards, under Article 2(2) of that directive, rights for the provision of electronic communications networks or services (see, to that effect, judgment of 17 December 2015, Proximus, C‑454/13, EU:C:2015:819, paragraph 21).

33      It follows that fees which are imposed on operators providing electronic communications services in return for the right to use digital television frequencies, such as those at issue in the main proceedings, fall within the scope of Article 13 of the Authorisation Directive.

34      Accordingly, it cannot be inferred from the fact that, when fixing those fees, the national legislature pursues an objective of a financial nature, in addition to the objectives of promoting competition and the efficient use of digital television frequencies, that that legislature required the payment of fees other than those referred to in Article 13, within the meaning of the case-law cited in paragraph 30 of the present judgment.

35      In order to give a useful answer to the referring court, it is necessary, in the second place, to determine whether Article 13 allows the pursuit of such an additional financial objective by fixing a minimum annual amount which must be ensured by the revenue from the fees imposed pursuant to Article 13.

36      In that regard, first, it is apparent from paragraphs 25 and 26 of the present judgment that the Authorisation Directive allows Member States, when fixing those fees, to pursue such an objective additional to those referred to in Article 13 of that directive, which is linked to the proceeds of the fees imposed in accordance with Article 13.

37      As the Court has already held with regard to Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15), Article 11(2) of which corresponds to Article 13 of the Authorisation Directive (judgment of 17 December 2015, Proximus, C‑517/13, EU:C:2015:820, paragraph 23), there is no requirement for those fees to be used for a particular purpose or that a particular use be subsequently made of the income from those fees by the Member State concerned. It follows that the Member State concerned can freely use that income (see, by analogy, judgment of 10 March 2011, Telefónica Móviles España, C‑85/10, EU:C:2011:141, paragraph 32).

38      Secondly, it is, however, necessary, as has been recalled in paragraph 23 of the present judgment, for the amount of the fees to be set at an appropriate level reflecting, inter alia, the value of the rights of use of scarce resources to which the operator liable to pay the fee has access, namely, in the present case, digital television frequencies.

39      In that regard, the Court has already held that the fixing of a fee for rights of use for radio frequencies by reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies, since either method can be used to obtain amounts which bear some relation to the foreseeable profitability of the radio frequencies concerned (see, to that effect, judgment of 21 March 2013, Belgacom and Others, C‑375/11, EU:C:2013:185, paragraphs 52 and 53).

40      It follows that Article 13 of the Authorisation Directive does not preclude national legislation, such as that at issue in the main proceedings, which fixes a minimum annual revenue to be generated by the fees provided for under Article 13, provided that that amount is calculated in such a way that it does not exceed the value of the rights of use for radio frequencies and, consequently, is fixed taking into account the foreseeable profitability of those radio frequencies.

41      Although it is for the referring court to carry out the necessary checks in that regard, the Court observes that the Italian Government states, in its written observations, that, following the adoption of Law No 208/2015, the amount of revenue from the collection of fees for rights of use for digital television frequencies decreased, which appears to indicate that that amount does not exceed the value of those rights of use. Similarly, the fact, if established, that all available digital television frequencies have been allocated and used is a factor supporting the conclusion that that amount is not excessive or, at least, did not result in an under-utilisation of those frequencies.

42      Thirdly, as regards, more specifically, the requirement arising from Article 13 of the Authorisation Directive that the amount of the fees imposed on each digital television operator must comply with the principle of proportionality, the referring court rightly considers that the review of compliance with that principle cannot relate to a reference parameter consisting not of the amount of the fees imposed on each operator, but of the total annual amount, pre-defined by the national legislation, which all of those fees must generate.

43      That said, as observed in paragraph 11 of the present judgment, the referring court states that, under the decrees at issue in the main proceedings, which fix the fees for the rights to use digital television frequencies for the relevant years, those fees are calculated on the basis of the geographical scope of the permit and the market value of the frequencies, taking into account incentives for the sale of transmission capacity for competition purposes, and the use of innovative technologies.

44      According to that court, those decrees provide, in particular, for a variable percentage discount on the fee in favour of network operators which are not vertically integrated or which, in the previous year, sold their transmission capacity to third parties not related to the same corporate group. Subject to the checks which it is for the referring court to carry out, those factors appear to support a finding that the Italian legislation complies with Article 13 of the Authorisation Directive, including as regards the requirement of proportionality laid down in that directive.

45      If that court were to make a finding of compatibility, and if, following the checks which it is for that court to carry out on the basis of the information set out in paragraphs 39 to 41 of the present judgment, it were also to find that the minimum annual amount of the overall revenue which those fees must generate in accordance with Article 1(174) of Law No 208/2015 is not higher than the value of the rights of use for digital television frequencies, that amount cannot be taken into account in the assessment of the proportionality, within the meaning of Article 13 of the Authorisation Directive, of the specific amount of the individual fees imposed on each operator using those frequencies. The proportionality of the amount of a fee, which has been determined individually by applying criteria consonant with Article 13, cannot be affected by the fact that that amount must also contribute to reaching an overall amount of revenue that does not exceed the total value of the rights of use for the frequencies to which that fee relates.

46      If, however, following the checks which it is required to carry out, the referring court were to conclude that the minimum annual amount of the overall revenue from the fees for the rights of use for digital television frequencies is higher than the value of those rights of use, and that, consequently, the Italian legislation does not comply with Article 13 of the Authorisation Directive, it should be borne in mind that, in order to ensure the effectiveness of all provisions of EU law, the primacy principle requires, inter alia, national courts to interpret, to the greatest extent possible, their national law in conformity with EU law. The obligation to interpret national law in a manner consonant with EU law has certain limits, however, and cannot, in particular, serve as a basis for an interpretation of national law contra legem. Should the referring court find that the national legislation cannot be interpreted in a manner consonant with EU law, it should be noted that, having regard to the direct effect of Article 13 (judgment of 12 July 2012, Vodafone España and France Telecom España, C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 38 and 39), the economic operators concerned are entitled to rely on it before the competent national courts in order to challenge those fees, since those courts must disapply national rules that are incompatible with Article 13 (see, to that effect, judgment of 20 November 2025, Framholm, C‑195/25, EU:C:2025:904, paragraphs 67, 68 and 70 and the case-law cited).

47      Having regard to the foregoing considerations, the answer to the question referred is that Article 13 of the Authorisation Directive, read in conjunction with Article 8 of the Framework Directive, and the principle of proportionality must be interpreted as not precluding national legislation which imposes a criterion for calculating fees for rights of use for digital television frequencies, determined on the basis of a predefined amount of annual revenue to be derived from those fees and, therefore, of general objectives of a financial nature, provided that that amount does not exceed the value of the rights of use for those frequencies.

 Costs

48      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 13 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/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Article 8 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, and the principle of proportionality

must be interpreted as not precluding national legislation which imposes a criterion for calculating fees for rights of use for digital television frequencies, determined on the basis of a predefined amount of annual revenue to be derived from those fees and, therefore, of general objectives of a financial nature, provided that that amount does not exceed the value of the rights of use for those frequencies.

[Signatures]

*      Language of the case: Italian.