Case C‑240/15

Autorità per le Garanzie nelle Comunicazioni

v

Istituto Nazionale di Statistica — ISTAT and Others

(Request for a preliminary ruling from

the Consiglio di Stato)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/21/EC — Article 3 — Impartiality and independence of the national regulatory authorities — Directive 2002/20/EC — Article 12 — Administrative charges — National regulatory authority subject to provisions applicable to public finances and to provisions for limiting and streamlining public authority spending)’

Summary — Judgment of the Court (Second Chamber), 28 July 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Interpretation of national law — Precluded

   (Art. 267 TFEU)

2. Approximation of laws — Electronic communications networks and services —Authorisation and regulatory framework — Directives 2002/20 and 2002/21 — National regulatory authorities — Subject to provisions of national law applicable to public finances and to provisions for limiting and streamlining the spending of public administrative authorities — Lawfulness — Conditions

   (European Parliament and Council Directives 2002/20, Art. 12 and 2002/21, as amended by Directive 2009/140, Art. 3)

1.  See the text of the judgment.

   (see paras 30, 31)

2.  Article 3 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140, and Article 12 of Directive 2002/20 on the authorisation of electronic communications networks and services (Authorisation Directive), must be interpreted as not precluding national legislation that subjects a national regulatory authority, within the meaning of Directive 2002/21, as amended by Directive 2009/140, to provisions of national law applicable to public finances and, in particular, to provisions for limiting and streamlining the spending of public administrative authorities.

   The second sentence of the first subparagraph of Article 3(3a) of Directive 2002/21 implies that national regulatory authorities responsible for ex ante market regulation or for the resolution of disputes between undertakings may properly be made subject to certain rules of budgetary monitoring by the national parliament, which includes being subject to ex ante measures that control public spending. Such control measures cannot, therefore, be deemed to impair the independence and impartiality of national regulatory authorities, as guaranteed by Directive 2002/21, and, accordingly, to be incompatible with Article 3 of that directive, unless it can be established that such measures may prevent the authorities concerned from satisfactorily carrying out the tasks assigned to them by that directive and the Specific Directives, or that they are contrary to the conditions that Directive 2002/21 imposes on the Member States to ensure that the national regulatory authorities have to a sufficient degree the independence and impartiality that that directive requires. In that regard, in the light of their fundamentally different functions, a national regulatory authority cannot justifiably claim that Directive 2002/21 requires Member States to guarantee to national regulatory authorities the same quality of independence that EU law provides with respect to central banks.

   (see paras 37-39, 43, 48, operative part)