Case C-112/16, Persidera – access to Italian broadcasting frequencies

Perisdera is an Italian broadcasting company. However, it has had difficulties accessing Italy’s radio frequencies. It is a story common to other broadcasters trying to access the Italian market; indeed, there is already preliminary reference about this problem pending at the CJEU, Case C-560/15, Europa Way. This fresh preliminary reference adds a further couple of legal questions.

Background
Telecom Italia was Italy’s publicly owned telephone company. A limb of this corporate giant was devoted to broadcasting, and traded as Telecom Italia Media Broadcasting. This broadcasting company has undergone yet another corporate transformation and now trades as Persidera.

Persidera has been experiencing difficulties accessing Italy’s airwaves. Their route to the Italian populace has been hindered by the way in which the Italian State and the regulator have been managing the switch-over from analogue frequencies to digital frequencies, in particular, through the way in which they have been awarding licences to a piece of technical kit known as a multiplexer.

Because Persidera was a part of Italia Telecom, it had some access to a multiplexer. However, when the Italian state decided to reorganise and increase access to other multiplexers, the terms of the licensing procedure legally prevented Persidera from competing for a licence for those other multiplexers because it was part of the national incumbent, Telecom Italia.

This might sound tedious but the Italian State’s restriction on the access to multiplexers has for more than a decade been clobbering various broadcasters seeking to reach Italian audiences. Unable to change Italian law through Parliamentary procedure, the Italian broadcasters have been continuously in the Italian courts trying to persuade the Italian judges to give them access to the available multiplexers by showing the national rules to be illegal.

In 2015, various related disputes ended up in Italy’s highest court for Italian administrative law matters, the Consiglio di Stato. Having heard the submissions of the parties, the Italian judges decided to make a preliminary reference to the CJEU, the case being docketed as Case C-560/15, Europa Way.

Now, Judge Pier Giorgio Lignani of the Italian Council of State has decided to make a fresh preliminary reference, or at least add a couple of extra questions to the Europa Way dispute, a dispute in which Persidera was already a party.

Questions Referred
According to the Curia website, the Italian Council of State has asked:

1. Does EU law, in particular Articles 56, 101, 102 and 106 TFEU, Article 9 of Directive 2002/21/EC [] (‘the Framework Directive’), Articles 3, 5 and 7 of Directive 2002/20/EC […] (‘the Authorisation Directive’) and Articles 2 and 4 of Directive 2002/77/EC […] (‘the Competition Directive’) and the principles of non-discrimination, transparency, freedom of competition, proportionality, effectiveness and pluralism of information preclude a provision of national law which, for the purposes of determining the number of digital networks to be allocated to operators for the conversion of analogue networks, provides that equal account should be taken of analogue networks operated entirely lawfully and analogue networks that operated in the past in breach of the anti-concentration thresholds laid down by rules of national law and have been the subject of adverse criticism by the Court of Justice or the European Commission or, in any event, operated without being granted the necessary right?

2. Does EU law, in particular Articles 56, 101, 102 and 106 TFEU, Article 9 of Directive 2002/21/EC (‘the Framework Directive’), Articles 3, 5 and 7 of Directive 2002/20/EC (‘the Authorisation Directive’) and Articles 2 and 4 of Directive 2002/77/EC (‘the Competition Directive’) and the principles of non-discrimination, transparency, freedom of competition, proportionality, effectiveness and pluralism of information preclude a provision of national law which, for the purposes of determining the number of digital networks to be allocated to operators for the conversion of analogue networks takes account of all the analogue networks operated until that point, including those operated in breach of the anti-concentration thresholds laid down by rules of national law that have already been the subject of adverse criticism by the Court of Justice or the European Commission or, in any event, those operated without being granted the necessary rights, and which has the actual effect of reducing the number of digital networks allocated to a multi-network operator, by comparison with those operated under the analogue system, to an extent which is proportionally greater than the reduction imposed on competitors?

Comment
Readers interested in the regulation of multiplexer technology are referred to another judgment of the CJEU which was handed down last year, C-376/13, Commission v. Bulgaria, ECLI:EU:C:2015:266. The case was an EU Commission challenge to how the Bulgarian State had restricted access to multiplexers. The judgment of the Ninth Chamber is available in either French or Bulgarian.

The EU Commission has also been in the background of the dispute in Case C-560/15, Europa Way. For more information about Case C-560/15, Europa Way; see Case C-560/15, Europa Way – denied free access to Italy’s broadcasting frequencies.

The ability of a regulatory decision that denies access to a piece of technology but then goes on to affect the supply of services in the internal market, is also at stake in the ‘Lahorgue’ preliminary reference to the CJEU; see further, Case C-99/16, Lahorgue – prevented access to a VPN and impeded in the internal market of legal services.

Update – 8 January 2017
The Fourth Chamber will hear this dispute on 2 February 2017.

Update – 26 February 2017
The Opinion of Advocate General Kokott is due on 30 March 2017.