CJEU Joined Cases C-764/23 to C-766/23 / Judgment

Cairo Network Srl and Others v Ministero delle Imprese e del Made in Italy and Others
Deciding body type
Court of Justice of the European Union
Type
Decision
Decision date
11/09/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:691
  • CJEU Joined Cases C-764/23 to C-766/23 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling – Electronic communications networks and 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 – Granting of rights of use – Judicial protection – Independence of national regulatory authorities

    Outcome of the case:

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

    1. 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 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union,

      must be interpreted as not precluding national legislation which, first, limits the effects of appeals brought by economic operators against acts relating to the allocation of rights to use radio frequencies, in the context of the reconfiguration of the 694-790 MHz frequency band, to the award of financial compensation and, secondly, limits the scope of interim measures that may be ordered pending the examination of such an action to the payment of a provision, provided that the terms of that financial compensation make it possible to fully compensate the damage suffered by those economic operators as a result of the application of those acts.

    2. Articles 3, 8 and 9 of Directive 2002/21, as amended by Directive 2009/140,

      must be interpreted as not precluding a national legislature from providing that the allocation of rights to use additional transmission capacity, released in the context of the transition between two broadcasting technologies, is to be carried out by means of a fee-based procedure, the characteristics of which, as regards the conditions for the allocation of those rights and the operators eligible to participate in that procedure, are defined by that legislature itself, provided that the legislature confines itself to defining principles which do not have the effect of depriving the national regulatory authority ( 1 ) of a substantial margin of discretion in defining the technical details of the procedure for allocating those rights and which require it merely to implement a procedure defined by that legislature.

    3. Articles 8 and 9 of Directive 2002/21, as amended by Directive 2009/140, Articles 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, Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, and the principle of the protection of legitimate expectations

      must be interpreted as not precluding national legislation on the allocation of rights to use radio frequencies which, during a technological transition accompanying the reconfiguration of the 694-790 MHz frequency band, does not provide for an equivalence-based conversion of previous rights to use radio frequencies and thus requires an operator wishing to retain its transmission capacity to participate in a fee-based procedure or to enter into an agreement with another operator, provided that such conversion is not necessary to preserve competition in the relevant market and that the operators concerned have not received specific, unconditional and consistent guarantees from the administrative authorities that their transmission capacity will be maintained in the event of a reconfiguration of rights to use radio frequencies.

    4. Articles 8 and 9 of Directive 2002/21, as amended by Directive 2009/140, Articles 5, 7 and 14 of Directive 2002/20, as amended by Directive 2009/140, and Article 4 of Directive 2002/77

      must be interpreted as not precluding a system for reconfiguring rights to use radio frequencies that does not include structural measures designed to compensate for illegalities relating to previous procedures for allocating such rights or to past conditions for operating radio frequencies, provided that other measures adopted by the competent authorities are sufficient to remedy the significant distortions of competition that could result from those illegalities.

  • Paragraphs referring to EU Charter

    60. By its first questions in Cases C‑764/23 and C‑765/23, which are identical, the referring court asks, in essence, whether Article 4(1) of the Framework Directive, read in the light of Articles 6 and 19 TEU and Article 47 of the Charter, must be interpreted as precluding national legislation which, first, limits the effects of actions brought by economic operators against acts relating to the allocation of rights to use radio frequencies, in the context of the reconfiguration of the 700 MHz frequency band, to the award of financial compensation and, secondly, limits the scope of interim measures which may be ordered pending consideration of such an action to the payment of a provision.

    ...

    64. It follows from the Court’s case-law that Article 4 of that directive is an offshoot of the principle of effective judicial protection guaranteed by Article 47 of the Charter and referred to in Article 19(1) TEU, under which it is for the courts of the Member States to ensure judicial protection of the rights which individuals derive from EU law (see, to that effect, judgments of 21 February 2008, Tele2 Telecommunication, C‑426/05, EU:C:2008:103, paragraph 30, and of 13 October 2016, Prezes Urzędu Komunikacji Elektronicznej and Petrotel, C‑231/15, EU:C:2016:769, paragraph 20).

    ...

    86. Consequently, the answer to the first questions in Cases C‑764/23 and C‑765/23 is that Article 4(1) of the Framework Directive, read in the light of Article 19 TEU and Article 47 of the Charter, must be interpreted as not precluding national legislation which, first, limits the effects of actions brought by economic operators against acts relating to the allocation of rights to use radio frequencies, in the context of the reconfiguration of the 700 MHz frequency band, to the award of financial compensation and, secondly, limits the scope of interim measures which may be ordered pending consideration of such an action to the payment of a provision, provided that the terms of that financial compensation make it possible to offset in full the damage suffered by those economic operators as a result of the application of those acts.

  • Paragraphs referring to EU Charter (original language)