Brussels, 01/02/2008 (Agence Europe) - In a judgment delivered on Thursday 31 January 2008, the Court of Justice of the European Communities said that the current Italian system for allocating television broadcasting frequencies does not comply with Community law (case C-380/05). Martin Selmayr, spokesman for Information Society and Media Commissioner Vivianne Reding told press that “we welcome that the judgment reinforces the principles of non-discrimination and transparency for the allocation of radio frequencies”. Without such standards, he added, “you not only hurt competition, you also hurt the consumer, who will have less innovation and less choice in the market”.
An Italian television channel Centro Europa 7 Srl, was unable to use the broadcasting rights had been granted by Italian authorities in 1999, because it was never allocated a radio frequency. In fact, Italian regulations maintain existing allocations. The system, originally supposed to be temporary, has been maintained by means of successive laws which have resulted in the perpetuation of the domination of historic broadcasters. In particular, Italian laws n° 43, of 24 February 2004, and 112, of 3 May 2004, authorise continued broadcasting of channels already operating and this “pending the completion of an inquiry into the development of digital television channels”. Centro Europa 7 Srl took the matter to the Consiglio di Stato, which asked the Court of Justice about the compliance of these and other, related, laws with the relevant European directives on broadcasting frequency allocation - directives 2002/21/EC and 2002/20/EC of the Parliament and of the Council (“framework” and “authorisation” respectively) and Commission directive 2002/77/EC (“competition”).
The Court found against the Italian legislation, pointing out that, de facto, it prevents new competitors from entering the market. The above directives and Article 49 EC “preclude, in television broadcasting matters, national legislation the application of which makes it impossible for an operator, holding rights, to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria”. The reasons of general interest put forward by the Italian authorities could justify restricting the number of licences granted, but in no way excuse the way in which the current system refuses any new request for a licence. It will now be up to the Italian parliament to bring national law into line with Community case law. According to a press release from Commissioner Reding, moves are already afoot, but the necessary legislative review has not yet been completed.
Selmayr welcomed the judgment against “the bias in favour of incumbent operators”, noted that it chimed with the new joint regulatory framework for electronic communications services (commonly known as the “telecom package”). This Commission initiative, presented in November of last year, aims to improve competition in electronic communications, particularly by modernising the management of the radio spectrum so that frequencies are used more rationally. Commissioner Reding says that current management is still worthy of the 1950s in many member states. The matter is one for co-decision, and many MEPs have expressed concern over some parts of the proposed reform (see EUROPE 9591). Reding, however, says she hopes the package will be adopted under French Presidency, in the second half of 2008. (C.D.)