Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The Vice Pretore di Frascati (Deputy Magistrate of Frascati) has referred to the Court of Justice for a preliminary ruling identical questions in three cases pending before him. The questions are worded as follows:
"1. Does the fact that the Italian Government has reserved for itself the use of various television broadcasting channels, prohibiting the private sector from availing itself of UHF channels 67 to 99, and in particular channels 67, 68 and 69, constitute an infringement of Articles 85(3) and 86 of the Treaty of Rome, where no rules on the coordination of the use of those channels have been adopted?
2. Is such conduct compatible with the Treaty of Rome and the competition rules contained therein?"
2. The following are the facts and legal background to the cases:
Radio frequencies have many uses, one of which is television broadcasting. Owing to the limited number of radio frequencies, the allocation and use of frequencies is subject to regulation at both international and national level.
Television broadcasting is carried out within specific frequency bands (television channels). The reception from television transmitters is normally limited to areas which are within sight of the transmission antenna. Within a minimum distance (depending on frequency band, emission effects, antenna design and so forth) it is not possible for two transmitters to operate on the same frequency without causing interference with each other.
The Italian rules on the allocation of radio frequencies relevant to the present cases were adopted in 1983. (1) These provided inter alia as follows:
1. Frequency bands between 470 and 862 MHz were to be used by the Ministry of Posts and Telecommunications in drawing up plans for the allocation of frequencies to public and private television broadcasting stations.
2. Frequency bands between 838 and 862 MHz, within which lay the UHF television channels 67, 68 and 69, were reserved, on the one hand, to the Ministry of Defence and, on the other, to the Ministry of Posts and Telecommunications for the operation of television broadcasting services by the public concessionary undertaking and private operators.
3. Frequency bands between 838 and 862 MHz could be used for broadcasting only "after prior technical coordination between the Ministry of Posts and Telecommunications and the Ministry of Defence".
3. Between 1983 and 1986, three private television companies ° the plaintiffs in the main proceedings ° set up local television stations in the Lazio region, which includes Rome. Each operated on one of the UHF television channels 67, 68 and 69. The Italian authorities ordered the companies to cease broadcasting on the channels in question.
Among other things, the authorities pointed out that the "technical coordination" referred to above, which was a precondition of the use by private companies of the channels in question, had not been carried out by the Ministry of Posts and Telecommunications and the Ministry of Defence. (2)
The companies contested those orders before the competent administrative court, which upheld the orders as described in the Report for the Hearing. It was not until later, in 1987 and 1988, that the companies brought interlocutory proceedings before the Pretura di Frascati (Magistrate' s Court, Frascati) under Article 700 of the Italian Code of Civil Procedure seeking the suspension by that court of the implementation of the orders. The court upheld those requests. It would appear that the implementation of those orders is still suspended.
The question whether the Court of Justice can and ought to reply to the questions submitted
4. The Italian Government has submitted that the Court must declare the questions in the preliminary reference to be inadmissible on the ground that the national court which made the references lacks jurisdiction to deal with the cases. The Commission has pointed out that the orders making the references contain scarcely any information on the factual and legal background to the questions submitted, a fact which creates problems so far as an appropriate reply to them is concerned.
The jurisdiction of the national court making the references
5. It appears from the documents in the case that, prior to referring the matter to the Court of Justice, the Pretura di Frascati had requested the Italian Constitutional Court to give a ruling on the constitutional validity of the legislation relevant to a resolution of the cases. The Constitutional Court rejected the questions as inadmissible on the ground that they had been referred to it by a court which manifestly lacked jurisdiction to deal with the cases in question. That decision (3) provided, inter alia, as follows:
"It must in particular be pointed out that the absence of jurisdiction in the court making the reference deprives the issue of constitutional validity of all relevance when that absence of jurisdiction follows so clearly from legislation or case-law as to be manifestly evident [...]. In this case, a decision establishing unconstitutionality would be deprived of its proper consequences inasmuch as it would remain inapplicable to the specific cases which gave rise to it.
With regard to the present case, the lack of jurisdiction of the ordinary courts, even merely to adopt urgent measures, is clear from the consistent and unequivocal case-law of the Corte di Cassazione (Court of Cassation) (see, most recently, judgment ... ), of the Consiglio di Stato (Council of State), and from this Court' s own case-law (judgment ... )".
6. The Italian Government has argued that the Court of Justice should go along with the reasoning which led the Italian Constitutional Court to declare the questions submitted to be inadmissible by making a similar declaration in respect of the questions here at issue. It points out that a ruling on the present references cannot contribute to the decisions in the main proceedings because the court making the references does not have jurisdiction to deal with those proceedings. Moreover, a preliminary ruling would be of no advantage to the Italian courts which do have jurisdiction, namely the administrative courts, in so far as they have already expressed their views on the disputes. The questions submitted are consequently irrelevant.
7. The Italian Government' s views on the significance of the absence of jurisdiction in the national court in this regard enjoys substantial support in the case-law of the Court of Justice. It is clear from that case-law that national courts may refer questions for a preliminary ruling only in cases where they have jurisdiction under national law to rule on the dispute which has given rise to those questions. Under Article 177 of the EEC Treaty, only a court or tribunal which considers that a decision on a question "is necessary to enable it to give judgment" may refer that question for a preliminary ruling. A court or tribunal lacking jurisdiction cannot give a judgment and there can consequently never be a need for such a court to obtain a preliminary ruling. (4)
8. This, however, is not necessarily conclusive in the present context, since it is crucial to determine how one can establish whether the court making the reference lacks jurisdiction to give a decision in the main proceedings. The basic premiss adopted by the Court of Justice in this regard is that it is up to the national legal order to prevent questions being referred by courts or tribunals which lack jurisdiction and that it should itself continue to deal with a reference so long as it has not been withdrawn or revoked. (5) Any different premiss would have implied that the Court itself was required to examine the jurisdiction of the court making the reference to give a decision in the main proceedings ° an examination which might have necessitated a problematic consideration of issues of national law. The Court expressed itself as follows in its judgment in Case 65/81: (6)
"... in view of the distribution of functions between itself and the national court, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their procedure. The Court is therefore bound by a decision of a court or tribunal of a Member State referring a matter to it, in so far as that decision has not been rescinded on the basis of a means of redress provided for by national law.
It follows from those considerations that where a court of a Member State brings a matter before the Court of Justice under Article 177 of the EEC Treaty the Court has jurisdiction, under that provision, to answer the questions raised without there being any need to consider first whether the decision making the reference to it was taken in accordance with the rules of national law governing the organization of the courts and their procedure." (Paragraphs 7 and 8).
As the orders for reference in the present cases have not been withdrawn and as there is nothing to suggest that they have been rescinded, the Court' s well -established principle that questions submitted should be examined directly requires that the questions in the present cases should be answered.
9. However, it is debatable whether that principle ought to be adhered to in the light of the particular circumstances of the present cases.
10. It may be useful to mention at the outset that the Court has demonstrated in its case-law that the above rule is no more than a basic assumption and that there may be circumstances in which the Court will decline to answer questions in a preliminary reference on the ground that they have been referred by a court which has no (longer) jurisdiction to deliver a decision in the main proceedings, even though such lack of jurisdiction has not been determined in the manner outlined above and even though the Court must in this base its decision to some extent on an assessment of national rules. The Court thus ruled in its judgment in Case 338/85 Pardini (7) that it "has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been terminated" and the Court accordingly examined whether the case in question had still been pending under national procedural rules before the court making the reference at the time when that reference was made.
11. There is in my opinion good reason to consider making a correspondingly limited exception to the general rule in the present cases, given that it can be assumed on the basis of the information available that the Court' s reply to the questions submitted will be delivered to a court whose decisions in the main proceedings will not be recognized by the Italian legal system on the ground of its manifest lack of jurisdiction.
In my opinion, a limited exception to the above rule would be both justifiable and correct in view of the very special circumstances of these cases, in which the court making the references has been found by the Constitutional Court, on the basis of the clear and consistent case-law of the highest Italian judicial bodies, clearly to lack jurisdiction to deal with the main proceedings.
In those circumstances, I do not believe that conclusive significance should be attached to the fact that the national court' s lack of jurisdiction has not been determined by a court having power under the Italian rules of court procedure to deliver decisions binding on the lower court in that connection.
12. I think that I have correctly understood ° on the basis, inter alia, of a remark by the Commission during the oral procedure ° that the fact that the orders making the references have not been withdrawn may be attributable to the absence under Italian law of any procedure by which appeals may be brought against decisions referring questions to the Court of Justice for a preliminary ruling.
While that fact clearly does not by itself resolve matters in the present context, it may perhaps be put forward as an argument in support of creating an exception to the Court' s general principle as outlined above. It cannot entirely be discounted that the absence of a possibility of appeal may result in cases where abuse of the preliminary reference procedure cannot be prevented by the application of national legal rules.
13. It may also be useful to call to mind the Court' s case-law on the relevance of questions submitted. According to the decided cases, the clear basic principle is that it is a matter for the national court to determine whether the questions of Community law to which a case before it gives rise are relevant and whether a preliminary ruling is necessary to enable that court to give judgment. The Court of Justice, however, has reserved to itself the possibility of declining to answer questions which "bear no relation to the reality or the subject-matter of the main proceedings" and which are therefore "not manifestly relevant to a decision in the main proceedings". Replies do not have to be given to hypothetical questions. (8)
Given that the Court has reserved the right to decline to answer questions which are obviously unrelated to a case and that it appreciates the need to exercise that reservation with prudence, it is not entirely clear why it should be unable to decline to reply to questions from a court which evidently has no connection itself with the case. The competent court which will subsequently be required to deal with the case will in any event still be entitled to make a reference.
14. The court which made the references has attempted to explain why it considers itself to be entitled to refer questions to the Court of Justice for a preliminary ruling, notwithstanding the decision of the Italian Constitutional Court regarding its lack of jurisdiction.
It stated as follows in the order for reference in Case C-321/90:
"With regard to lack of jurisdiction: there are two reasons why it is not possible to comment on this objection at the present stage: in the first place, Community law takes precedence over national law at both substantive and procedural levels; the request for a preliminary ruling therefore takes precedence over the objection of absence of jurisdiction.
This view is confirmed by the fact that it is possible to bring a matter before the Court of Justice even in the presence of legitimate interests and that this is therefore a possibility which is also open to an administrative court.
Both for reasons of procedural economy and in view of the precedence of Community law already established, the question of absence of jurisdiction cannot be examined until the Court of Justice has delivered its ruling.
The second reason which relegates the question of the absence of jurisdiction in the ordinary courts below that concerning the substance of the case is that the new Law of 6 August 1990 placed those situations in an impasse on 23 August 1990 and, in view of the rules on co-ordination promised by the legislature, no measure by a court to alter that situation can be valid."
15. There may undoubtedly be situations in which rules of Community law may be of decisive significance for the jurisdiction of a national court and it may be necessary in such situations for that court to refer questions to the Court of Justice in order that the latter can clarify the issue of jurisdiction.
One example of this is Case 179/84, Bozzetti, (9) in which the jurisdiction of the court making the reference depended under Italian law on whether or not the Community' s co-responsibility levy on milk constituted a tax.
The Court ruled as follows:
"As the Court stated in its judgment of 19 December 1968, Salgoil, to which the parties have referred, it is for the legal system of each Member State to determine which court has jurisdiction to hear disputes involving individual rights derived from Community law, but at the same time the Member States are responsible for ensuring that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to intervene in order to resolve any questions of jurisdiction which may arise, within the national judicial system, as regards the definition of certain legal situations based on Community law.
However, as the Council has rightly remarked, the way in which the co-responsibility levy is defined under Community law is not without significance as regards national law. There is therefore some purpose in informing the national court of the rules of Community law which may help to solve the problem of jurisdiction with which it is faced." (Paragraphs 17 and 18).
16. It is therefore in principle left to the Italian legal order to fix its national rules of court procedure and there is in my view nothing in the present cases to suggest that Community law is in any way relevant to the application of the Italian procedural rules which determine the jurisdiction of courts in cases such as the present.
It strikes me as obvious in any event that the reasons given by the court making the references for declining "at the present stage" to address the issue of jurisdiction are not relevant in that connection.
Viewed in isolation, the principle of the primacy of Community law cannot affect the results of the application of the Italian rules on the jurisdiction of courts.
It is not particularly easy to understand the comments of the Vice Pretore on the jurisdiction of administrative courts to refer questions for a preliminary ruling and his reference to "reasons of procedural economy". In so far as they must be derived from the view that the Court' s reply to the questions here submitted might be of significance to the administrative courts, it can be held to follow from the Court' s decision in the Pardini case that such a consideration cannot result in a court, which in any event lacks jurisdiction, being able to refer questions for a preliminary ruling.
So far as I can ascertain, the last of the Vice Pretore' s remarks relates to purely national matters which are of no relevance to the questions here under discussion.
17. On the basis of the above considerations, I propose that the Court decline to answer the questions in the preliminary references on the ground that they have been submitted by a court which manifestly lacks jurisdiction to deal with the main proceedings.
In case the Court takes a different view as to the result, I would comment as follows on the other issues to which the cases give rise.
The grounds of the orders for reference
18. The Commission has pointed out in its written observations that one feature of the orders for reference is that they are particularly "laconic and give sparse details of the elements of fact and law such as to make it possible to identify the purpose of the questions of interpretation and thus to comprehend their meaning and scope".
After referring to Article 86 of the EEC Treaty, the court making the references confines itself in the three orders to setting out the following grounds for its questions:
"That provision, which supplements Article 85 of the Treaty, categorically lays down an absolute prohibition of any kind of monopoly. Article 86(c) specifies the activities which constitute an abuse of the rules of competition. The Court of Justice of the European Communities has on several occasions interpreted the aforesaid provisions to that effect."
The Commission also points out that a feature common to the cases is that the aspects of Community law which may be relevant to the decisions in the main proceedings were not adequately examined when the cases were being dealt with.
This situation is highlighted by the fact that one of the three applicant undertakings prefaces its brief written observations to the Court (in Case C-322/90) with the declaration that:
"The order from the Pretore di Frascati ... has submitted a particularly complex issue for examination by the Court ..."
19. It is well known that the Court has gone to great lengths to rephrase questions in a preliminary ruling in order to give them a coherent form and also to make it possible to provide a meaningful reply to those questions despite incomplete information on the legal and factual issues involved. This is a natural consequence of the close cooperation between national courts and the Court of Justice, the framework for which was established by Article 177 and the importance of which has been emphasized at regular intervals by the Court. (10)
However, it is precisely because Article 177 presupposes close cooperation between national courts and the Court of Justice that the former must be made aware of how crucially important it is that the Court should be adequately informed of the legal and factual background to questions submitted to it. In preliminary rulings, the Court is not examining abstract questions of law. Its rulings must be applied in order to ensure correct and uniform application of Community law in situations where national courts are faced with concrete legal disputes. If the Court has not been adequately apprised of the factual and legal background to the questions submitted, there is a risk that its reply may be inappropriate and may ultimately result in the incorrect application of Community law in the Member States.
That is why the Court has consistently stressed that:
"... the need to provide an interpretation of Community law which will be of use to the national court makes it essential to define the legal context in which the interpretation requested should be placed. From that aspect it might be convenient, in certain circumstances, for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court of Justice so as to enable the latter to take cognizance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give ..." (11)
Although its basic view is that national courts are generally best placed to determine the relevant issues of fact and law to be set out in a reference, the Court has also stated in several cases that:
"In order that the Court of Justice may perform its task in accordance with the Treaty it is essential for national courts to explain, when the reasons do not emerge beyond any doubt from the file, why they consider that a reply to their questions is necessary to enable them to give judgment." (emphasis added). (12)
The Court in that connection properly drew attention to the fact that such an explanation is also important because it is necessary to give Member States and other interested parties an opportunity to submit observations under Article 20 of the Statute of the Court of Justice, and that
"It is the Court' s duty to ensure that the opportunity to submit observations is safeguarded, in view of the fact that, by virtue of the abovementioned provision [of the Statute], only the decisions making the references are notified to the interested parties." (13)
The Court has on occasion had to decline to answer questions in a preliminary reference because it was not possible, on the basis of the information available, to identify the legal doubts entertained by the national court. (14)
However, it is, so far as I can ascertain, correct to state that this has happened only to a limited extent and only in cases where, even after an examination of the documents relating to the main proceedings and on the basis of the submissions made to the Court, there still remained substantive difficulties in identifying the legal doubts entertained by the national court.
20. In my opinion, the question arises as to whether or not the Court should decline to a greater extent than previously to reply to questions in preliminary references where the orders making those references do not provide an adequate account of the factual and legal background to the questions submitted, with the result that major difficulties are placed in the way of formulating an appropriate reply.
A slightly more restrictive attitude on the part of the Court would in that regard be justified for the reasons outlined above. In addition, as the Commission pointed out in its written observations, it is unsatisfactory, both on principle and in practical terms, for the Court to have to extract from the parties' observations in the main proceedings the information which it requires on the factual and legal background to the questions in a reference. Such work may not merely be very demanding in terms of resources ° as the present cases demonstrate ° but may also carry a risk of errors.
21. The reason why I have reviewed these considerations is that the orders for reference in the present cases may also, in my view, be criticized for their inadequate account of the legal and factual background to the respective cases.
If, notwithstanding this, I do not for that reason propose that the Court should decline to reply to the questions submitted, this is, in the first place, because the Court, as mentioned above, has previously gone to great lengths to answer questions posed, and secondly, because it is possible, despite everything else, to identify, on the basis of the first question submitted, the essential problem of interpretation of Community law which the national court wishes the Court of Justice to consider.
The inadequacy of the grounds given for the questions in the present cases, however, may prompt the Court to emphasize in its judgment (a) the need for orders for reference to contain such information on the legal and factual background to the questions submitted as the Court requires for its replies and (b) that failure to do so may render the Court unable to answer the questions.
The lack of sufficient grounds for the questions and the resultant limitations on the Court' s knowledge of the facts and legal issues involved in the cases also mean that the Court, in replying to the questions, should confine itself to an examination of those issues which can with certainty be treated as having engendered the doubt as to the compatibility with Community law of the circumstances described in the first question.
The interpretation of the competition rules in the EEC Treaty
22. The questions submitted request the Court to interpret the Treaty rules on competition in the context of a situation where a number of specified television channels cannot be used by private undertakings, on the ground that they are reserved for the use of public authorities so long as the planned "technical coordination" has not been carried out, the latter constituting a precondition of the use by private undertakings of the television channels in question.
It appears from the written observations submitted by the television companies in Cases C-320/90 and C-322/90 that the questions were motivated by uncertainty as to the extent to which the relevant Italian rules and their practical application to the three private television companies were at variance with the Treaty rules on competition, inasmuch as those rules and their application may discriminate between the public concessionary company RAI and the private companies.
23. There is nothing in the documents on the cases to suggest that an interpretation of the Article 85 prohibition of agreements, decisions and concerted practices between undertakings which distort competition is relevant. It also appears from the grounds of the questions given by the national court that it is seeking in particular an interpretation of Article 86.
24. It can in any event be assumed, on the basis of the available information concerning the ownership of RAI and that company' s duties as a public service undertaking, that RAI is an undertaking which is covered by Article 90 of the Treaty.
25. The Court can therefore, in my opinion, confine itself to interpreting Article 90 of the Treaty, in conjunction with Article 86, with a view to deciding whether the conduct of the authorities described above infringes the prohibition in Article 90 on Member States, in the case of public undertakings and undertakings to which they grant special or exclusive rights, enacting measures in breach of the Article 86 prohibition of abuse of a dominant position. (15)
26. I might refer at the outset to what the Court said in its judgment of 18 June 1991 in the ERT case (16) on the significance of the Treaty in the area of regulation of television broadcasting in Member States. The Court stated as follows:
"In Case 155/73 Sacchi [1973] ECR 409, paragraph 14, the Court held that nothing in the Treaty prevents Member States, for considerations of non-economic nature relating to the public interest, from removing radio and television broadcasts from the field of competition by conferring on one or more establishments an exclusive right to carry them out.
Nevertheless, it follows from Article 90(1) and (2) of the Treaty that the manner in which the monopoly is organized or exercised may infringe the rules of the Treaty, in particular those relating to free movement of goods, the freedom to provide services and the rules on competition." (Paragraphs 10 and 11).
It follows from the Court' s extensive and comprehensive case-law in this area (17) that Member States may not adopt or maintain in force measures "which may deprive of their effectiveness the competition rules applicable to undertakings". The Court has identified a variety of groups of cases where public measures breach Article 90 in conjunction with Article 86. In broad terms, this practice can be interpreted as an application of the principle that Member States may not "promote" conduct which comes under the prohibition in Article 86. (18)
27. So far as the relevant Italian rules as such are concerned, it seems clear that they are not at variance with Community law. It is in the nature of things that the authorities ° in the light of international obligations and with regard to a wide range of matters of a technical, cultural, social and practical nature ° are required to allocate the small number of radio frequencies among the large number of users, and have to satisfy themselves by way of mandatory rules that the necessary discipline is maintained.
Obviously, the authorities are entitled to reserve certain radio frequencies for public purposes, in particular those relating to public safety. They are also entitled to make the use of certain frequencies subject to technical coordination, for the purpose of avoiding interference with the use by public authorities of the frequency bands in question.
28. So far as can be ascertained, the three television companies are not contesting the principles laid down in the Italian rules, but rather the fact that the planned technical coordination has not yet taken place.
It cannot be ruled out that the administration of rules on the allocation of television channels may in itself constitute a breach of Article 90 in conjunction with Article 86. In my opinion, however, there must be very strong evidence that the allocation of radio frequencies, objectively justified in principle, is actually being used to promote the abuse of a dominant position by a public undertaking. I do not believe that there is any such evidence in the cases at present under consideration, which in any event relate to an extremely limited number of the television channels which can in theory be used.
I might point out that no information was provided during the course of the procedure to suggest that the special circumstances relating to the retransmission of foreign television programmes, such as were relevant to the Court' s judgment in the ERT case, exist in the present cases. (19)
29. On the basis of those reasons alone, it can, in my opinion, be concluded that there has been no breach of Article 90 in conjunction with Article 86.
For the sake of completeness, however, I might point out that it is in any event a condition of the application of Article 90, in conjunction with Article 86, that the alleged abuse was committed by an undertaking which has a dominant position within the common market or in a substantial part of it, and that the abuse affects trade between Member States.
In any individual case it is the task of the national court to determine whether or not those conditions have been satisfied.
However, it may be useful to note that it is not at all certain that RAI occupies a dominant position on the relevant market. The Commission addressed this question to a certain extent in its oral observations. It argued that RAI scarcely had a dominant position at national level. (20) It would appear prima facie probable that that view is correct, particularly if one takes account of the large number of private television stations at both national and local level in Italy.
There is no information in the cases which would make it possible to determine whether conditions may be different on the local market relevant to the main proceedings, or whether the local market in this instance makes up a substantial part of the common market.
30. I might point out in conclusion that the conduct of the Italian authorities in the present cases did not, as I see it, involve an abandonment of the principle of "equality of opportunity for all economic operators". The Court, as will be generally known, applied that principle and in my opinion, in the context of the present cases, applied it correctly, in its judgment in Case C-202/88 France v Commission [1991] ECR I-1223 (the market in telecommunications terminal equipment). (21) The Court pointed out that the principle was necessary in order to guarantee "a system of undistorted competition, as laid down in the Treaty".
It is not necessary in the present cases to discuss the prospects of establishing, on the basis of the substantive Treaty rules governing competition, a generally valid and directly applicable principle of "equality of opportunity for all economic operators".
So far as I have been able to ascertain, there has in the present cases been no unjustified discrimination against private companies to the benefit of RAI.
There is, admittedly, information to suggest that RAI, to a certain degree which in any event is undocumented, was authorized to use the UHF television channels 67 to 69, and it has been established that the authorities prohibited the three companies involved from using those channels. As I have already mentioned, however, the Court accepted that public television companies may have a special status for the purpose of protecting objectives of a public nature which can and must be taken into consideration in the context of television broadcasting. There is no doubt that RAI has been given a special status in several respects, in the same manner as its counterparts in the other Member States. Such a status, however, carries with it obligations as well as rights. In principle, this special status may also justify preferential treatment when it comes to the allocation of television channels. Furthermore, RAI' s special status with regard to the allocation of television channels in the context of the present cases is, according to the information supplied by the Italian Government, justified by the fact that it is already possible, by virtue of RAI' s position as a public concessionary company, to ensure the necessary technical coordination and thereby avoid interference with the other existing uses made of the radio frequencies in question.
31. In the light of the above, I find that it is possible to conclude that Article 90, in conjunction with Article 86, cannot be interpreted as meaning that conduct such as that described in the questions in the preliminary references amounts to an infringement of those provisions.
Conclusion
32. On the basis of the above reasoning, I accordingly propose that the Court decline to answer the questions submitted.
If the Court decides that the questions must be answered, I propose that it give the following reply:
The competition rules in the EEC Treaty, and particularly Article 90 in conjunction with Article 86, cannot be understood as meaning that the prohibition of the use of certain specified television channels by private undertakings, on the ground that they are reserved for the use of public authorities so long as planned technical coordination has not been completed, constitutes an infringement of those rules.
(*) Original language: Danish.
(1) ° Article 34 of the Law on radio and television broadcasting, adopted in 1990, maintains in force the 1983 rules until the allocation plan for which it provides has been adopted.
(2) ° Two of the companies were also informed that it had been established that their television broadcasting was causing a certain amount of interference with the use of the frequencies in question by the army, police and the public concessionary undertaking RAI.
(3) ° Decision No 102 of 2 March 1990.
(4) ° This line of thought has found expression, inter alia, in the Court' s judgment in Case 338/85 Pardini v Ministero del Commercio con l' Estero [1988] ECR 2041, paragraph 9 of which states that:
... the Court held in its judgment of 11 June 1987 (Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545) that its jurisdiction to reply to a request for a preliminary ruling is subject to the requirement that the request emanates from a court or tribunal which has acted in the general framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction conferred on it by law. (emphasis added).
(5) ° Judgment in Case 146/73 Rheinmuehlen-Duesseldorf v Einfuhr- und Vorratsstelle fuer Getreide und Futtermittel [1974] ECR 139.
(6) ° Reina v Landeskreditbank Baden-Wuerttemberg [1982] ECR 33.
(7) ° Judgment in Case 338/85 Pardini, cited above, paragraph 11.
(8) ° See, most recently, paragraph 20 of the Court' s judgment in Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673.
(9) ° Judgment in Case 179/84 Bozzetti v Invernizzi and Ministero del Tesoro [1985] ECR 2301.
(10) ° See, for example, paragraph 8 of the Court' s judgment in Case 338/85 Pardini, cited above.
(11) ° Judgment of the Court in Case C-83/91 Meilicke v ADV/ORGA [1992] ECR I-4871, paragraph 26.
(12) ° See, for example, the judgments in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 17, in Joined Cases 98/85, 162/85 and 258/85 Bertini and Others v Regione Lazio and Unità Sanitarie Locali [1986] ECR 1885, paragraph 6, and, most recently, that in Case C-343/90 Lourenço Dias, cited above, paragraph 19.
(13) ° See judgment in Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6.
(14) ° See, for example, the Court' s judgment in Case 14/86 Pretore di Salò, cited above, paragraph 16.
(15) ° There is, in my opinion, nothing in the documents on the cases to warrant an interpretation of the other prohibitive rules referred to in Article 90. It may be useful to point out that the alleged discrimination against the private companies and in favour of RAI is in any event not based on nationality and consequently does not infringe the prohibition set out in Article 7 of the Treaty. There is also nothing to suggest that the prohibition in Article 59 of the Treaty has any relevance to the present cases (on this, see the conclusion of point 28 below).
(16) ° Case C-260/89 ERT-AE v DEP [1991] ECR I-2925.
(17) ° In addition to the above judgment in the ERT case, mention might also be made of the Court' s judgments in Case C-41/90 Hoefner and Elser v Macrotron [1991] ECR I-1979 and in Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889.
(18) ° At point 39 of his Opinion in Joined Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565, Advocate General Van Gerven gave the following summary of the Court' s case-law:
It appears, I think, from that case-law that the Court' s view is that the provisions of Article 90, in conjunction with those of Articles 85 and 86, cover State measures ... which encourage, require or make inevitable conduct by undertakings which, whatever its nature, is prohibited by Articles 85 and 86, and measures which delegate to undertakings a duty of regulating competition such as ought to be performed by the authorities [emphasis added]. The [central] consideration [in this case-law is] that such State measures, in combination with one form or another of conduct by an undertaking, have the same effects with regard to the structure of competition on the Community market as conduct by an undertaking which is unconnected with action by the public authorities. It appears further from that case-law that conduct by an undertaking which is necessary as a link factor to make Article 90(1) applicable in conjunction with Article 85 or 86 need not necessarily precede action by the public authorities but may follow it, result therefrom or even be the inevitable consequence thereof. Nor is it necessary for the undertaking itself to have committed an intentional infringement of the rules of competition (in other words, it is enough for it to be placed in a situation in which it cannot act otherwise than by restricting competition).
(19) ° Judgment in Case C-260/89 ERT, cited above, at paragraph 37 of which the Court ruled as follows:
In that respect it should be observed that Article 90(1) of the Treaty prohibits the granting of an exclusive right to retransmit television broadcasts to a single undertaking which has an exclusive right to transmit broadcasts, where those rights are liable to create a situation in which that undertaking is led to infringe Article 86 by virtue of a discriminatory broadcasting policy which favours its own programmes.
(20) ° The Commission referred, inter alia, to the documentation submitted in the preliminary reference in Case C-170/90 Odeon Pubblicità and Others v Fininvest and Others, referred by the Tribunale Civile e Penale di Milano but withdrawn after the conclusion of the written and oral procedure before the Court. The case concerned conditions of competition on the Italian market in television advertising.
(21) ° See paragraph 51 of the judgment in that case.
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