Information Note on the Court’s case-law No. 153
June 2012
Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC] - 38433/09
Judgment 7.6.2012 [GC]
Article 10
Positive obligations
Article 10-1
Freedom to impart information
Failure to allocate radiofrequencies to licensed television broadcaster: violation
Facts – The applicants are a company and its statutory representative. In July 1999 the Italian authorities granted the applicant company a licence for nationwide terrestrial television broadcasting, authorising it to install and operate an analogue television network covering 80% of national territory. As regards the allocation of frequencies, the licence referred to the 1998 national frequency allocation plan, stating that the applicant company should bring its installations into line with the requirements of the “assignment plan” within twenty-four months and should conform to the “adjustment programme” drawn up by the Communications Regulatory Authority. From 2000 onwards, the applicant company made several applications to the administrative courts, complaining about the failure to allocate it any broadcasting frequencies. In May 2008 the Consiglio di Stato ordered the Government to deal with the request for the allocation of frequencies. In January 2009 it also ordered the appropriate ministry to pay the applicant company approximately EUR 1,000,000 in compensation, calculated on the basis of its legitimate expectation of being allocated frequencies.
Law – Article 10: The authorities’ failure to allocate frequencies to the applicant company had deprived its licence of all practical purpose since the activity it authorised had been de facto impossible to carry out for nearly ten years. There had therefore been interference with the applicant company’s exercise of its right to impart information or ideas. Furthermore, having been awarded a broadcasting licence, it could reasonably have expected the authorities to adopt, within twenty-four months, the instruments needed to regulate its activities, provided that it upgraded its installations. However, the frequency allocation plan had not been implemented until December 2008 and the applicant company had been allocated a single channel to broadcast its programmes, with effect only from the end of June 2009. In the meantime, several operators had continued on a provisional basis to use various frequencies that were supposed to have been allocated to new operators under the national plan. The Consiglio di Stato had held that this state of affairs was due to essentially legislative factors. A series of laws had successively extended the period during which the existing “over-quota” channels could continue to broadcast at both national and local level. The other operators had therefore been prevented from participating in the early stages of digital television. Moreover, these laws, which were couched in vague terms, had postponed the expiry of the transitional scheme with reference to events occurring on dates which were impossible to foresee. In addition, the Court of Justice of the European Union had noted that these measures by the national legislature had entailed the successive application of transitional arrangements structured in favour of the incumbent networks, and that this had had the effect of preventing operators without broadcasting frequencies from accessing the television broadcasting market even though they had a licence. Accordingly, the domestic legislative framework had lacked clarity and precision and had not enabled the applicant company to foresee with sufficient certainty when it might be allocated the frequencies in order to start broadcasting. As a result, the laws in question did not satisfy the foreseeability requirements. Lastly, the authorities had not observed the deadlines set in the licence, thereby frustrating the applicant company’s expectations. The Government had not shown that the company had had effective means at its disposal to compel the authorities to abide by the law and the Constitutional Court’s judgments. Accordingly, the applicant company had not been afforded sufficient guarantees against arbitrariness. This shortcoming had resulted, among other things, in reduced competition in the audiovisual sector. It therefore amounted to a failure by the State to comply with its positive obligation to put in place an appropriate legislative and administrative framework to guarantee effective media pluralism.
Conclusion: violation (sixteen votes to one).
The Court also held, by fourteen votes to three, that there had been a violation of Article 1 of Protocol No. 1, finding that the applicant company’s legitimate expectation – notably the operation of an analogue television network by virtue of the licence – had had a sufficient basis to constitute a “possession”. Given that the Court had already held under Article 10 that the interference with the applicant company’s rights had not had a sufficiently foreseeable legal basis within the meaning of its case-law, it could only reach the same finding in relation to Article 1 of Protocol No. 1.
Article 41: EUR 10,000,000 to the applicant company in respect of pecuniary and non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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