Contents
Judgment of the Court (First Chamber)8 June 2023note(Reference for a preliminary ruling — Electronic communications networks and services — Directives 2002/19/EC, 2002/20/EC, 2002/21/EC et 2002/22/EC — Article 49 TFEU — Freedom of establishment — Article 56 TFEU — Freedom to provide services — National legislation granting the national regulatory authority the power to impose on telephony service providers a minimum time frame for the renewal of offers and a minimum time frame for billing — Consumer protection — Principle of proportionality — Principle of equal treatment)In Case C‑468/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 9 July 2020, received at the Court on 29 September 2020, in the proceedingsFastweb SpA,TIM SpA,Vodafone Italia SpA,Wind Tre SpAvAutorità per le Garanzie nelle Comunicazioni,intervening parties:Telecom Italia SpA,Vodafone Italia SpA,Associazione Movimento Consumatori,U.Di.Con ‑ Unione per la Difesa dei Consumatori,Wind Tre SpA,Assotelecomunicazioni (Asstel),Eolo SpA,Coordinamento delle associazioni per la tutela dell’ambiente e dei diritti degli utenti e consumatori (Codacons),Associazione degli utenti per i diritti telefonici – A.U.S. TEL ONLUS,Altroconsumo,Federconsumatori,THE COURT (First Chamber),composed of A. Arabadjiev (Rapporteur), President of the Chamber, P.G. Xuereb, T. von Danwitz, A. Kumin and I. Ziemele, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Fastweb SpA, by F. Caliento, E. Cerchi, M. Contu, M. Merola and E. Pistis, avvocati,– Tim SpA, by F. Cardarelli, A. Catricalà, C. Cazzato and F. Lattanzi, avvocati,– Vodafone Italia SpA, by F. Cintioli and G. Lo Pinto, avvocati,– Wind Tre SpA, by A. Cassano, M. Clarich, I. Perego, G.M. Roberti and M. Serpone, avvocati,– Associazione Movimento Consumatori, by P. Fiorio and R. Viriglio, avvocati,– Coordinamento delle associazioni per la tutela dell’ambiente e dei diritti degli utenti e consumatori (Codacons) and Associazione degli utenti per i diritti telefonici – A.U.S. TEL ONLUS, by G. Giuliano and C. Rienzi, avvocati,– the Italian Government, by G. Palmieri, acting as Agent, and by P. Palmieri, avvocato dello Stato, and M. Cherubini, procuratore dello Stato,– the French Government, by C. Mosser, E. de Moustier and N. Vincent, acting as Agents,– the European Commission, by G. Braun, L. Malferrari and A. Spina, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 49 and 56 TFEU, Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), Article 3 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), Article 8(2) and (4) 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/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Framework Directive’), and Articles 20 to 22 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11) (‘the Universal Service Directive’), as well as the principles of proportionality and equal treatment.
2The request has been made in proceedings between four fixed and mobile telephony operators operating in Italy, namely Fastweb SpA, Tim SpA, Vodafone Italia SpA and Wind Tre SpA, and the Autorità per le Garanzie nelle Comunicazioni (Communications Supervisory Authority, Italy) (‘AGCOM’) concerning that authority’s decision imposing a minimum time frame, first, for renewal of commercial offers and, second, for billing fixed and mobile telephony services.
Legal context
European Union law
3The common regulatory framework for electronic communications services, electronic communications networks and associated facilities and services, in force at the time of the facts in the main proceedings (‘the common regulatory framework’), consists of the Framework Directive and the four specific directives accompanying it, including, inter alia, the Access, Authorisation and Universal Service Directives. Those directives were repealed by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).
The Access Directive
4Article 1(1) of the Access Directive provided:‘Within the framework set out in [the Framework Directive], this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. …’
The Authorisation Directive
5Article 1(2) of the Authorisation Directive provided:‘This Directive shall apply to authorisations for the provision of electronic communications networks and services.’
The Framework Directive
6Recital 16 of the Framework Directive stated:‘National regulatory authorities should have a harmonised set of objectives and principles to underpin, and should, where necessary, coordinate their actions with the regulatory authorities of other Member States in carrying out their tasks under this regulatory framework.’
7Article 1(1) of that directive provided:‘This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services, and certain aspects of terminal equipment to facilitate access for disabled users. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the [European Union].’
8Article 8 of the Framework Directive 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;…4.The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:…(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;…(d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services;…5. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia:…(b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;…’
The Universal Service Directive
9Under Article 20 of the Universal Service Directive:1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:…2. Member States shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions. Member States shall ensure that national regulatory authorities are able to specify the format of such notifications.’
10Article 21(1) of the Universal Service Directive provided:‘Member States shall ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications networks and/or publicly available electronic communications services to publish transparent, comparable, adequate and up-to-date information on applicable prices and tariffs, on any charges due on termination of a contract and on standard terms and conditions in respect of access to, and use of, services provided by them to end-users and consumers in accordance with Annex II. Such information shall be published in a clear, comprehensive and easily accessible form. National regulatory authorities may specify additional requirements regarding the form in which such information is to be published.’
11Article 22(1) and (3) of that directive provided:1. Member States shall ensure that national regulatory authorities are, after taking account of the views of interested parties, able to require undertakings that provide publicly available electronic communications networks and/or services to publish comparable, adequate and up-to-date information for end-users on the quality of their services and on measures taken to ensure equivalence in access for disabled end-users. ……3. In order to prevent the degradation of service and the hindering or slowing down of traffic over networks, Member States shall ensure that national regulatory authorities are able to set minimum quality of service requirements on an undertaking or undertakings providing public communications networks.…’
Italian law
12Article 1(1) of Legge n. 481 – Norme per la concorrenza e la regolazione dei servizi di pubblica utilità. Istituzione delle Autorità di regolazione dei servizi di pubblica utilità (Law No 481 of 14 November 1995 on the rules relating to competition and the regulation of public utility services and on the establishment of regulatory authorities for public utility services; ‘Law No 481/1995’) (GURI No 270 of 18 November 1995, p. 1) provides:‘The purpose of the provisions of this law is to ensure the promotion of competition and efficiency in the public utility services sector … as well as appropriate levels of quality in those services, under conditions of cost-effectiveness and efficiency, by ensuring their ease of use and uniform deployment throughout the national territory, establishing a certain, transparent tariff system based on predefined criteria, promoting the protection of the interests of users and consumers, taking into account the relevant [EU] rules and the general policy guidelines laid down by the Government.…’
13Under Article 2(12)(h) and (l) of that law:‘Each authority, in order to pursue the aims set out in Article 1, shall carry out the following functions:…(h) issue directives concerning the production and the provision of services by the entities providing those services, defining, in particular, the general quality standards for the services as a whole and the specific quality standards for each service to be guaranteed to the user, having consulted the service providers and the representatives of users and consumers, where appropriate differentiating them by sector and type of service; such decisions shall have the effects referred to in paragraph 37;…(l) publicise and disseminate information on the conditions of service performance to ensure maximum transparency, competitiveness and the possibility for intermediate or end-users to make more informed choices’.
14Article 1(6)(b)(2) of Legge n. 249 – Istituzione dell’Autorità per le garanzie nelle comunicazioni e norme sui sistemi delle telecomunicazioni e radiotelevisivo (Law No 249 of 31 July 1997 establishing the Communications Supervisory Authority and rules on telecommunications and broadcasting systems; ‘Law No 249/1997’) (GURI No 177 of 31 July 1997, p. 3) provides:‘The powers of [AGCOM] are defined as follows:…(b) the Commission for services and products:…(2) issues directives on general levels of service quality and on the adoption by each operator of a service charter indicating the minimum standards for each sector of activity’.
15Articles 13, 70 and 71 of decreto legislativo n. 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 of 1 August 2003 establishing the Electronic Communications Code; ‘Legislative Decree No 259/2003’) (GURI No 214 of 15 September 2003, p. 3) transposed into Italian law Article 8 of the Framework Directive and Articles 20 and 21 of the Universal Service Directive.
16Article 13 of that legislative decree provides:1. In performing the regulatory functions set out in this Code and in accordance with the procedures contained therein, the Ministry and [AGCOM] shall, within the scope of their respective powers, take all reasonable measures to achieve the general objectives set out in Article 4 and paragraphs 4, 5 and 6 of this Article.…4.The Ministry and [AGCOM] shall promote competition in the provision of electronic communications networks and services, as well as associated facilities and services:(a) ensuring that users, including disabled users, the elderly and those 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 for the transmission of content;…(d) encouraging efficient use and management of radio frequencies and numbering resources.…6.The Ministry and [AGCOM] support, within their respective powers, the interests of citizens:(a) ensuring access for all to a universal service, as defined in Title II, Chapter IV;(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;…(d) promoting the provision of clear information, in particular by requiring transparency of tariffs and conditions of use of publicly available electronic communications services;(e) meeting the needs of disabled people, elderly people and people with special social needs;…(g) promoting the ability of end-users to access and distribute information and to use applications and services of their choice.…’
17Article 70 of that legislative decree provides:1.… consumers, as well as other end-users so requesting, shall be entitled to a contract with an undertaking or undertakings providing connection services to a public communications network or publicly available electronic communications services. The contract shall specify in a clear, comprehensive and easily accessible form at least the following elements:(a) the identity and address of the undertaking;(b) the services provided, including in particular:…(3) the minimum quality levels of the services offered, namely the time needed for initial connection and, where appropriate, other indicators relating to the quality of the service, as defined by [AGCOM];…2. [AGCOM] shall monitor the application of the measures taken for the purposes of the provisions of paragraph 1 and may extend the obligations laid down in that paragraph to ensure that they also exist with regard to other end-users.…4. The other party to the contract, if he or she does not accept the amendments to the contractual conditions by undertakings providing electronic communications networks or services, shall have the right to terminate the contract without penalty or decommissioning costs. The amendments shall be communicated to the other party to the contract in good time, that is, at least 30 days in advance, and shall contain full information on the exercise of the right of termination. [AGCOM] may specify the form of such communications.…’
18Article 71 of Legislative Decree No 259/2003 provides as follows:1. [AGCOM] shall ensure that undertakings providing public electronic communications networks or publicly available electronic communications services shall publish transparent, comparable, adequate and up-to-date information on applicable prices and tariffs, on any charges due on termination of a contract and on standard terms and conditions in respect of access to, and use of, services provided by them to end-users and consumers in accordance with Annex 5. Such information shall be published in a clear, comprehensive and easily accessible form. [AGCOM] may specify additional requirements regarding the form in which such information is to be made public.…2. [AGCOM] shall encourage the provision of comparable information to enable end-users and consumers to make an independent assessment of the cost of alternative use plans, including by means of interactive guides. Where those resources are not available on the market free of charge or at a reasonable price, [AGCOM] shall ensure their availability, either itself or through third parties. Third parties shall have the right to use, free of charge, information published by undertakings providing publicly available electronic communications networks or services for the purpose of selling or making available such interactive guides or similar techniques.…’
The main proceedings, the questions referred and the procedure before the Court of Justice
19In 2016, AGCOM launched a public consultation procedure in the electronic communications services sector in Italy, in view of the perceived need to take into account the evolution of the fixed and mobile telephony market in order to ensure transparent, comparable, adequate and up-to-date information on prices for access to, and use of, those services.
20During that consultation, AGCOM highlighted problems concerning, first, the possibility for users to have, free of charge, knowledge of the residual credit in the context of mobile telephony and, secondly, the time frame for billing in connection with fixed telephony.
21First, as regards fixed telephony, AGCOM found that certain operators had changed the terms of their commercial offers by reducing the renewal period to four weeks instead of one month, which had led to an increase in prices and had made it difficult for users to compare the offers of the various operators, since offers with different renewal time frames were in competition with each other, which undermined the requirements of transparency and comparability of the financial conditions of offers and, therefore, of the right of the user to choose freely the contract to be concluded. In order to address these problems, AGCOM considered setting the time frame for billing, to which the time frame for renewal is linked, on a monthly basis for fixed telephony and other related offers.
22Secondly, as regards mobile telephony, AGCOM found that a large number of operators had already adopted or envisaged adopting a four-week time frame for renewal of their offers and that, consequently, the comparability of those offers could be ensured by fixing the renewal interval of their offers either on a monthly basis, on a four-week basis or by allowing changes to the billing interval only on condition that the cost to the user remained unchanged.
23At the end of the public consultation procedure launched by AGCOM, AGCOM adopted Decision No 121/17/CONS (‘the contested decision’), which provides, inter alia, that the time frame for renewal of fixed telephony offers and for billing of those services must be intervals of one month or multiples thereof, and that the time frame for mobile telephony must not be less than four weeks. According to that decision, in the case of offers relating to fixed telephony, the time frame for fixed telephony shall apply. That decision also provides that mobile telephony operators that adopt a time frame for renewal of offers and billing which is on a non-monthly basis shall inform users promptly by SMS that the offer has been renewed.
24By means of four separate actions, Fastweb, Tim, Vodafone Italia and Wind Tre challenged the contested decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy).
25Since that court dismissed the actions brought by the applicants in the main proceedings, they brought an appeal before the Consiglio di Stato (Council of State, Italy), which is the referring court, claiming, in essence, first, that the contested decision has no legal basis, since neither the Italian legal system nor that of the European Union confers on AGCOM the power to regulate the time frame for renewal of offers of telephony services and for billing of those services. Secondly, they maintain that that decision infringes the principle of proportionality, since the objectives underlying the adoption of that decision could have been achieved by measures which were less restrictive of the freedom of operators of telephony services. Thirdly, according to those applicants, the measures contained in the contested decision infringe the principle of equal treatment, on the ground that there is no justifiable reason for the different legal treatment accorded to mobile telephony operators and fixed telephony operators.
26The referring court observes, in the first place, that Articles 13, 70 and 71 of Legislative Decree No 259/2003, read in conjunction with Article 2(12)(h) and (l) of Law No 481/1995 and Article 1(6)(b)(2) of Law No 249/1997, provide a basis for AGCOM’s power to determine the time frame for billing for fixed and mobile telephony services and for the renewal of commercial offers for such services, with the aim of ensuring consumer protection, even though those provisions do not expressly provide for such a power.
27That power is consistent with the common regulatory framework, which defines the objectives to be pursued in the field of electronic communications services, electronic communications networks and associated facilities and services and leaves it to the national regulatory authorities (‘NRAs’) to determine which regulatory measures they consider most appropriate to achieve those objectives.
28That power is consistent with the objectives pursued by the Framework Directive, which seeks to ensure the promotion of competition in the provision of electronic communications networks, in particular by ensuring, as stated in Article 8(2)(a) of that directive, that the most vulnerable persons derive maximum benefit in terms of choice, price and quality. In addition, such a power would support the interests of the citizens of the European Union, by ensuring a high level of consumer protection and by promoting the provision of clear information, in particular by requiring transparency of tariffs and conditions for using electronic communications services, in accordance with the provisions set out in Article 8(4)(b) and (d) of that directive. Moreover, it follows from the wording of those provisions that they do not set out an exhaustive list of the means of achieving the objective of supporting the interests of the citizens of the European Union. The powers of the NRAs are therefore not limited to the implementation of the measures expressly referred to in those provisions.
29AGCOM’s power to determine the time frame for billing fixed and mobile telephony services and for the renewal of commercial offers for such services is also consistent with the requirements incumbent on the Member States and that are intended, on the one hand, to ensure that indicators of quality of service are mentioned in the contract between the consumer and the undertaking providing electronic connection or services of that kind and, on the other hand, to require operators of electronic communications networks or electronic services to publish in a clear, detailed and easily accessible form transparent, comparable, adequate and up-to-date information regarding, inter alia, prices and tariffs applied, as provided for in Article 20(1)(b) and Article 21 of the Universal Service Directive respectively.
30Nor does that power appear to be contrary to Articles 49 and 56 TFEU, since the measures which may be taken by AGCOM in the exercise of that power do not require operators of fixed and mobile telephony services to obtain an authorisation prior to the exercise of their activity and preserve the freedom of those operators to exercise their activity by defining the financial elements of the contractual service.
31The referring court notes, in the second place, that the contested decision complies with the principle of proportionality. The measures provided for in that decision enable users to compare the various commercial offers since those measures eliminate the risk that such offers appear to have lower prices, which would be the result of a calculation made on the basis of a period shorter than that established in practice. That decision also enables users of fixed and mobile telephony services to control the expenditure generated by the service received.
32According to the referring court, alternative measures, such as providing users of telephony services with interactive guides or a calculation engine to compare commercial offers on the basis of the same time indicator, would be ineffective in view of the considerable number of users in Italy who do not own a smartphone or do not use the internet. Furthermore, a measure consisting of imposing an obligation to publish a projection of the price also on a monthly basis could harm consumer protection, since such an obligation could give rise to confusion as to the actual content of the contractual terms relating to the time frame.
33The measures provided for in the contested decision do not unduly affect the rights and interests of operators of fixed and mobile telephony services, since they do not affect their freedom to choose the price of their services and to offer commercial offers at intervals of more than four weeks.
34In the third place, the referring court considers that the contested decision complies with the principle of equal treatment, since the different time frames for billing imposed for fixed telephony and mobile telephony services result from the fact that those two sectors of activity are not objectively comparable, owing to the differences in the commercial practices of the providers of those services and in the arrangements for payment of the price of those services, which existed at the time when the contested decision was adopted. According to that court, unlike mobile telephony services, which were characterised mainly by a four-week interval for renewing the commercial offer and billing and by the purchase of prepaid services, fixed telephony services were characterised by the preponderance of monthly intervals and were paid for mainly after they were provided, by direct debit from the user’s current account.
35Therefore, a time frame of four weeks for the renewal of the commercial offer and billing enables users of mobile telephony services to compare their offers. In addition, the communication to the users of those services of information about their remaining credit and the time frame for renewal of the commercial offer and billing is sufficient to enable those users to control the expenditure generated by the service received. On the other hand, since payment for fixed telephony services after they have been provided makes it more difficult to monitor the expenditure generated by those services, this could be ensured by imposing a fixed contractual time frame, at intervals of one month or multiples thereof.
36It is on that basis that the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Does the correct interpretation of Article 267 TFEU require the national court, against whose decisions there is no judicial remedy under national law, to make a reference for a preliminary ruling on a question of interpretation of the relevant [EU] law in the main proceedings, even where there is no doubt as to the interpretation of the relevant EU provision – taking into account the terminology and meaning specific to [EU] law attributable to the wording of the relevant provision, the applicable European regulatory framework and its underlying objectives of protection, having regard to the stage of development of [EU] law [at the time] when the relevant provision is to be applied in the national proceedings – but [where it cannot be established] in detail, from a subjective point of view … with regard to the [attitude] of other courts, that the interpretation of the referring court is the same as the one likely to be given by the courts of the other Member States and by the Court of Justice, to which the same question is referred?(2) Does the correct interpretation of Articles 49 and 56 TFEU, and of the harmonised regulatory framework as enshrined in [the Access], [Authorisation], [Framework] and [Universal Service Directives] – and in particular in Article 8(2) and (4) of [the Framework Directive], Article 3 of [the Authorisation Directive] and Articles 20, 21 and 22 of [the Universal Service Directive] – preclude a national rule such as that inferred from the provisions of Articles 13, 70 and 71 of [Legislative Decree No 259/03] in conjunction with Article 2(12)(h) and (l) of [Law No 481/1995] and Article 1(6)[b](2) of [Law No 249/1997], which gives the national regulatory authority in the electronic communications sector the power to impose: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof[;] and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?(3) Does the correct interpretation and application of the principle of proportionality, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in [the Access], [Authorisation], [Framework] and [Universal Service Directives] – and in particular in Article 8(2) and (4) of [the Framework Directive], Article 3 of [the Authorisation Directive] and Articles 20, 21 and 22 of [the Universal Service Directive] – preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for renewal of offers and billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof[;] and (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?(4) Does the correct interpretation and application of the principles of non-discrimination and equal treatment, in conjunction with Articles 49 and 56 TFEU and the harmonised regulatory framework as enshrined in [the Access], [Authorisation], [Framework] and [Universal Service Directives] – and in particular in Article 8(2) and (4) of [the Framework Directive], Article 3 of [the Authorisation Directive] and Articles 20, 21 and 22 of [the Universal Service Directive] – preclude the adoption of regulatory measures by the national regulatory authority in the electronic communications sector aimed at imposing: (i) for mobile telephony, a time frame for the renewal of offers and for billing of at least four weeks, with the simultaneous introduction of the obligation for the relevant economic operators that adopt a time frame for the renewal of offers and for billing which is on a non-monthly basis, to inform users promptly by SMS that the offer has been renewed; (ii) for fixed telephony, a time frame for the renewal of offers and for billing at intervals of one month or multiples thereof; [and] (iii) in the case of offers that are bundled with fixed telephony, the time frame applicable to fixed telephony?’
37By a communication of 25 October 2021, the Court sent the referring court a copy of the judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi (C‑561/19, EU:C:2021:799), asking that court to indicate whether, in the light of that judgment, it intended to maintain the reference for a preliminary ruling. By an order of 23 November 2021, that court decided, first, to withdraw the first question referred for a preliminary ruling and, secondly, to maintain the other questions.
Admissibility of the request for a preliminary ruling
38The Italian Government submits that the questions referred for a preliminary ruling are inadmissible.
39Those questions are purely hypothetical and abstract and constitute a request for an opinion, formulated without regard to the specific features of the dispute in the main proceedings.
40In addition, the request for a preliminary ruling does not seek to dispel any doubt on the part of the referring court as to the correct interpretation of the EU rules applicable to that dispute, but rather to confirm that court’s conviction as to how those rules should be interpreted.
41In that regard, it should be borne in mind that, according to settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling (judgment of 7 February 2023, Confédération paysanne and Others (In vitro random mutagenesis), C‑688/21, EU:C:2023:75, paragraph 32 and the case-law cited).
42The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 7 February 2023, Confédération paysanne and Others (In vitro random mutagenesis), C‑688/21, EU:C:2023:75, paragraph 33 and the case-law cited).
43It is apparent from the order for reference, in essence, that the second to fourth questions arise, inter alia, from the argument of the applicants in the main proceedings that the contested decision, adopted in accordance with the applicable national legislation, the legality of which is challenged in the main proceedings, infringes EU law, since there is no EU rule that would enable AGCOM to be granted the power to define the time frame for contractual renewal and billing of mobile and fixed telephony services, and that that decision infringes the principles of proportionality and equal treatment.
44Accordingly, it cannot be held that those questions bear no relation to the actual facts of the main action or its purpose or that they are hypothetical.
45As regards the fact that the referring court stated, in its decision of 9 July 2020, that it has no doubts as to the interpretation to be given to the EU rules which it considers relevant for the resolution of the dispute in the main proceedings, suffice it to note that, even if the correct interpretation of those rules were so obvious as to leave no scope for any reasonable doubt, such a circumstance would not be such as to demonstrate the inadmissibility of the request for a preliminary ruling but would, at most, be capable of exempting the referring court from its obligation under the third paragraph of Article 267 TFEU to make a reference for a preliminary ruling (see, to that effect, judgment of 7 February 2023, Confédération paysanne and Others (In vitro random mutagenesis), C‑688/21, EU:C:2023:75, paragraph 35).
46In the light of the foregoing, the request for a preliminary ruling must be declared admissible.
Consideration of the questions referred
47It should be noted at the outset that the Access and Authorisation Directives harmonise, in accordance with Article 1 of each directive, on the one hand, the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities and, on the other hand, the rules and conditions for authorisation of electronic communications networks and services. They are therefore irrelevant for the purpose of resolving the dispute in the main proceedings, since the powers of AGCOM at issue in that dispute clearly do not fall within their material scope.
48In those circumstances, it must be held that, by its second to fourth questions, which it is appropriate to examine together, the referring court seeks to ascertain, in essence, whether Articles 49 and 56 TFEU and the provisions of the Framework Directive and the Universal Service Directive, in particular Article 8(2) and (4) of the Framework Directive and Articles 20 to 22 of the Universal Service Directive, read in conjunction with the principles of proportionality and equal treatment, must be interpreted as precluding national legislation which confers on the NRA the power to adopt a decision requiring, first, mobile telephony service operators to have a time frame for the renewal of commercial offers and billing of not less than four weeks and, secondly, operators of fixed telephony and related services to have a time frame for renewal of such offers and billing of one month or multiples thereof.
49As a preliminary point, it should be recalled that, according to settled case-law, any national measure relating to an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not in the light of the provisions of primary law (judgment of 17 September 2020, Hidroelectrica, C‑648/18, EU:C:2020:723, paragraph 25 and the case-law cited).
50On the other hand, where the harmonisation carried out is not exhaustive, the national measures implementing the provisions of the harmonisation measures must be assessed not only in the light of those measures, but also in the light of the relevant provisions of primary law (see, to that effect, judgments of 12 November 2015, Visnapuu, C‑198/14, EU:C:2015:751, paragraph 48; of 8 March 2017, Euro Park Service, C‑14/16, EU:C:2017:177, paragraph 26; and of 7 September 2017, Eqiom and Enka, C‑6/16, EU:C:2017:641, paragraph 18).
51In that regard, it is clear from settled case-law that neither the Framework Directive nor the Universal Service Directive provides for full harmonisation of the aspects relating to consumer protection (see, to that effect, judgment of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 32 and the case-law cited). It follows that the national legislation at issue in the main proceedings must be examined both in the light of those directives and in the light of Articles 49 and 56 TFEU as regards aspects not covered by them (judgment of 11 December 2019, TV Play Baltic, C‑87/19, EU:C:2019:1063, paragraph 33 and the case-law cited).
The Framework Directive and the Universal Service Directive
52It should be recalled that, according to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 17 November 2022, TOYA, C‑243/21, EU:C:2022:889, paragraph 36 and the case-law cited).
53As regards Article 8 of the Framework Directive, it must be recalled that, under the first subparagraph of paragraph 1 thereof, Member States must ensure that the NRAs take all reasonable measures which are aimed at achieving the objectives set out, inter alia, in paragraphs 2 and 4 of that article, and that those measures are to be proportionate to those objectives.
54In particular, first, Article 8(2)(a) of that directive provides that the NRAs are to promote competition in the provision of electronic communications networks and services and associated facilities and services by ensuring that end-users derive maximum benefit, in particular in terms of choice and price (see, to that effect, judgment of 20 December 2017, Polkomtel, C‑277/16, EU:C:2017:989, paragraph 35).
55Secondly, under Article 8(4)(b) and (d) of that directive, the NRAs are to promote the interests of citizens of the European Union by, inter alia, ensuring a high level of protection for consumers in their dealings with suppliers and by promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services.
56While it is not apparent from those provisions that the NRAs must have the power to regulate the time frame for renewal of commercial offers and billing by telephony service operators, it is, however, apparent from the use of the words ‘inter alia’ or ‘in particular’ in Article 8(2) and (4) of the Framework Directive that the measures which may be adopted by the NRAs in order to carry out the tasks assigned by those provisions and to pursue the objectives set out therein are not listed exhaustively.
57As regards the objectives of the common regulatory framework, it should be noted that, in accordance with Article 1(1) of the Framework Directive, read in the light of recital 16 thereof, the objective of that directive is to create a harmonised framework for the regulation of electronic communications services, electronic communications networks and associated facilities and associated services. That directive lays down the tasks of NRAs and establishes a set of procedures to ensure the harmonised application of the common regulatory framework throughout the European Union. The Framework Directive thus confers on the NRAs specific tasks for regulating the electronic communications markets (judgment of 11 March 2010, Telekomunikacja Polska, C‑522/08, EU:C:2010:135, paragraph 21).
58It follows that that directive, which, as recalled in paragraph 51 of the present judgment, does not provide for full harmonisation, is not intended to draw up a specific and exhaustive list of the powers that the Member States may confer on NRAs to ensure that those tasks are carried out and that those objectives are achieved.
59It is in that context that the Court has held that, in the exercise of their regulatory functions, NRAs have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis (judgments of 15 September 2016, Koninklijke KPN and Others, C‑28/15, EU:C:2016:692, paragraph 36, and of 19 October 2016, Ormaetxea Garai and Lorenzo Almendros, C‑424/15, EU:C:2016:780, paragraph 48).
60In those circumstances, national legislation which, like the national legislation at issue in the main proceedings, confers on the NRA, in order to protect end-users, the power to adopt a decision ensuring, inter alia, greater transparency and comparability of commercial offers and of billing of telephony services contributes to the attainment of the objectives set out in Article 8 of the Framework Directive, in particular the objective of protecting the interests of those users, referred to in Article 8(2)(a) of that directive, as well as the objectives of ensuring a high level of protection of consumers in their dealings with suppliers and of promoting the provision of clear information, inter alia, on tariffs for publicly available electronic communications, referred to in Article 8(4)(b) and (d) of that directive.
61It follows that the power to regulate the time frame for renewal of commercial offers and billing for telephony services may, in principle, be among those that NRAs must have in order to be able to perform the tasks and attain the objectives assigned by the Framework Directive.
62The fact remains that, in order to comply with that directive, the exercise of that power must, inter alia, be proportionate to the objectives thus pursued, in accordance with the first subparagraph of Article 8(1) of that directive, and comply with the principle of equal treatment, as required, in essence, by Article 8(5)(b) of that directive.
63In that regard, it is for the referring court, which alone has jurisdiction to assess the facts in the main proceedings and to interpret the national legislation, to determine whether and to what extent the contested decision satisfies those requirements. However, the Court of Justice, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written observations which have been submitted to it, in order to enable that court to give judgment (judgments of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraphs 72 and 73 and the case-law cited, and of 2 February 2023, Freikirche der Siebenten-Tags-Adventisten in Deutschland, C‑372/21, EU:C:2023:59, paragraph 38).
64As for the principle of proportionality, which is embodied in the first subparagraph of Article 8(1) of the Framework Directive, it should be borne in mind that compliance with that principle implies, in particular, that the measure in question is appropriate to ensure, in a consistent and systematic manner, the attainment of the objectives pursued and that it does not go beyond what is necessary to attain those objectives, it being understood that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, to that effect, judgments of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 46 and the case-law cited, and of 2 March 2023, PrivatBank and Others, C‑78/21, EU:C:2023:137, paragraph 70).
65In that regard, in the light of the information provided by the referring court, it appears, first, that the exercise by AGCOM of the power conferred by Italian law to impose a minimum time frame for both the renewal of commercial offers and billing of electronic communications services is capable of remedying the problems identified by AGCOM during the public consultation which preceded the contested decision. The fixing of a uniform time frame enables end-users to compare the various commercial offers and to be fully aware of the financial charges arising from the contracts offered to them, to avoid the creation of an appearance of lower prices resulting from a calculation based on a time indicator shorter than that established in practice and to control the expenditure generated by the service received, in particular as regards mobile telephony services in Italy, the majority of which are prepaid services. The national legislation at issue in the main proceedings therefore appears to be appropriate to ensure that the objective pursued is achieved.
66Next, the referring court itself states, in essence, that the measures which are the subject of the contested decision, adopted in accordance with the applicable legislation, are the least restrictive measures to ensure effective consumer protection in the light of the problems identified by AGCOM. Alternative measures such as the implementation of interactive guides or a calculation engine used to compare commercial offers on the basis of the same time indicator might appear ineffective in view of the considerable number of users in Italy who do not have a smartphone or who do not use the internet. Furthermore, the imposition of an obligation to publish the projection of the price also on a monthly basis could harm consumer protection, since such an obligation could give rise to confusion as to the actual content of the contractual terms relating to the time frame for billing.
67Finally, the measures which are the subject of the contested decision do not appear to unduly prejudice the rights and interests of telephony service operators, since, as is apparent from the documents before the Court, they do not affect, in particular, their freedom to set the price of their services or to propose commercial offers at intervals of more than four weeks. Consequently, those measures do not appear to cause disadvantages disproportionate to the aims pursued.
68As regards compliance with the principle of equal treatment, of which Article 8(5)(b) of the Framework Directive is the embodiment, it should be noted that, according to settled case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 15 September 2022, Brown v Commission, C‑675/20 P, EU:C:2022:686, paragraph 66 and the case-law cited).
69In that regard, the referring court states that the difference in treatment between mobile telephony services and fixed telephony services at issue in the main proceedings arises from the fact that those two categories of services were not, at the time the contested decision was adopted, in comparable situations.
70It is clear from the case-law of the Court that the comparability of situations for the purposes of determining whether there has been an infringement of the principle of equal treatment must be assessed in the light of the subject matter and purpose of the national legislation at issue (see, to that effect, judgments of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraphs 25 and 26; of 9 March 2017, Milkova, C‑406/15, EU:C:2017:198, paragraphs 56 and 57; and of 26 June 2018, MB (Change of gender and retirement pension), C‑451/16, EU:C:2018:492, paragraph 42).
71In the present case, since the national legislation at issue seeks to enable the NRA to guarantee consumer protection, by ensuring, inter alia, a uniform basis for comparing commercial offers and by allowing better control of the expenditure generated by the service received, the differences relating to the characteristics of the various categories of services at issue, in particular those relating to the preponderance of certain time frames for renewal of those offers and billing in the various markets and those relating to the arrangements for payment of the price of those services, referred to in paragraph 34 of the present judgment, appear to demonstrate a lack of comparability of the situations of those categories of services.
72In those circumstances, the contested decision appears to treat different situations differently.
73It follows that, subject to verification to be carried out by the referring court, the exercise of the powers conferred on AGCOM by the national legislation at issue in the main proceedings in the context of the adoption of the contested decision is proportionate to the objectives pursued and respects the principle of equal treatment.
74That said, it should be borne in mind that, in the context of minimum harmonisation, the Member States may maintain or adopt stricter provisions in that regard, provided that those provisions, inter alia, are not liable seriously to compromise the attainment of the result prescribed by the directives in question (see, to that effect, judgment of 7 July 2016, Muladi, C‑447/15, EU:C:2016:533, paragraph 43).
75In that regard, even if the national legislation at issue in the main proceedings is to be regarded as laying down stricter provisions on consumer protection than those set out in the Framework and Universal Service Directives, it should be noted that, contrary to what Fastweb maintained in its written observations, it cannot be held that that legislation, by restricting the ability of telephony operators to adjust the time frame of their commercial offers, limits competition between operators of telephony services in Italy, since they remain free to engage in such competition, in particular, on the basis of price and the quality of the services offered.
76Furthermore, as regards Articles 20 and 21 of the Universal Service Directive, it must be held that that legislation does not infringe those articles. Those articles relate, as their respective wording indicates, to the information which must be contained in contracts for the provision of services for connection to a public communications network and/or publicly available electronic communications services and to the right of subscribers to withdraw from their contract in the event of a change, and to the obligations of transparency and publication of information which may be imposed on undertakings providing public electronic communications networks and/or publicly available electronic communications services. On the other hand, those provisions do not relate to the conditions of performance of contracts for the provision of electronic communications services, including the issue of the time frame for the renewal of commercial offers and billing.
77The same is true of Article 22 of that directive, which concerns information on the quality of services that undertakings offering publicly available electronic communications networks and/or services may be required to publish and the quality of service requirements that NRAs may lay down.
78Therefore, it cannot be held that the national legislation at issue in the main proceedings is such as to seriously compromise the result prescribed by the Framework and Universal Service Directives.
79It follows from the foregoing considerations that national legislation such as that at issue in the main proceedings appears to comply with those directives.
Articles 49 and 56 TFEU
80The referring court also seeks to ascertain whether that national legislation is compatible with Articles 49 and 56 TFEU.
81It must be borne in mind that all measures that prohibit, impede or render less attractive the exercise of the freedoms guaranteed by Articles 49 and 56 TFEU must be regarded as restrictions on the freedom of establishment and/or the freedom to provide services (judgment of 22 January 2015, Stanley International Betting and Stanleybet Malta, C‑463/13, EU:C:2015:25, paragraph 45).
82The concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States (judgments of 29 March 2011, Commission v Italy, C‑565/08, EU:C:2011:188, paragraph 46, and of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 64).
83In the main proceedings, it is common ground that the measures contained in the contested decision, adopted in accordance with the relevant national legislation, apply without distinction to the place of establishment of the suppliers of telephony services.
84Nevertheless, Fastweb claims that those measures constitute a restriction on the freedom of establishment and the freedom to provide services on the ground that the Italian Republic is the only Member State in which the NRA has the power to set minimum billing intervals and that, consequently, an operator established in another Member State would have to adopt, inter alia, a different management and billing system in order to adapt to the Italian regulatory framework, thereby exposing it to additional administrative costs.
85In that regard, it should be recalled that the rules of a Member State does not constitute a restriction within the meaning of the FEU Treaty solely by virtue of the fact that other Member States apply less strict, or more commercially favourable, rules to providers of similar services established in their territory (judgment of 12 September 2013, Konstantinides, C‑475/11, EU:C:2013:542, paragraph 47 and the case-law cited).
86It follows that, as the Advocate General observed, in essence, in points 50 and 51 of his Opinion, the existence of a restriction within the meaning of the FEU Treaty cannot be inferred from the mere fact that the limitations introduced by the contested decision do not exist in other Member States.
87In the present case, it is not apparent from the file submitted to the Court that the alleged administrative additional cost relied on by Fastweb is, in itself, such as to deter economic operators from other Member States from exercising the freedoms guaranteed by Articles 49 and 56 TFEU.
88In the light of the foregoing considerations, the answer to the second to fourth questions is that Articles 49 and 56 TFEU and Article 8(1), first subparagraph, (2)(a), (4)(b) and (d) and (5)(b) of the Framework Directive and Articles 20 to 22 of the Universal Service Directive, read in conjunction with the principles of proportionality and equal treatment, must be interpreted as meaning that they do not preclude national legislation which confers on the NRA the power to adopt a decision requiring, on the one hand, mobile telephony service operators to have a time frame for the renewal of commercial offers and billing of not less than four weeks and, on the other hand, operators of fixed telephony and related services to have a time frame for the renewal of such offers and billing of one month or multiples thereof, provided that the two categories of services in question are, in the light of the subject matter and purpose of that national legislation, in different situations.
Costs
89Since 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.
Operative part
On those grounds, the Court (First Chamber) hereby rules: Articles 49 and 56 TFEU and Article 8(1), first subparagraph, (2)(a), (4)(b) and (d) and (5)(b) 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, and Articles 20 to 22 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with the principles of proportionality and equal treatment,must be interpreted as meaning that they do not preclude national legislation which confers on the national regulatory authority the power to adopt a decision requiring, on the one hand, mobile telephony service operators to have a time frame for the renewal of commercial offers and billing of not less than four weeks and, on the other hand, operators of fixed telephony and related services to have a time frame for the renewal of such offers and billing of one month or multiples thereof, provided that the two categories of services in question are, in the light of the subject matter and purpose of that national legislation, in different situations.
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