Published on 19 February 2024
FIRST SECTION
Application no. 64356/19
EUROPA WAY S.R.L.
against Italy
lodged on 12 December 2019
communicated on 1 February 2024
SUBJECT MATTER OF THE CASE
The application concerns the annulment of a “beauty contest” procedure for the allocation of frequencies for digital terrestrial television broadcasting.
In the years 2009 and 2010 the Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni – AGCOM) adopted regulations on the allocation of frequencies through a beauty contest procedure. In 2011 the Ministry of Economic Development (“the Ministry”) launched the beauty contest. The applicant company was invited to tender and resulted to be the only tenderer for one of the lots of frequencies covered by the procedure. By order of 20 January 2012 the Ministry stayed the procedure. The applicant company challenged the order before the Lazio Regional Administrative Court. While judicial proceedings were pending, Article 3 quinquies of Decree-Law no. 16 of 2 March 2012, as introduced by Law no. 44 of 26 April 2012, annulled the beauty contest, established that it would be replaced by a public selection procedure based on competitive bidding, and that the participants in the previous procedure would be awarded compensation. Following a public consultation, in 2013 AGCOM adopted regulations for the new selection procedure. In 2014 the Ministry published a new call for tenders, in which the applicant company did not participate. The applicant company challenged the annulment of the procedure, the 2013 AGCOM regulations and the new selection procedure before the Lazio Regional Administrative Court. By a judgment of 25 September 2014, the Lazio Regional Administrative Court examined the applications lodged by the applicant company jointly and rejected them.
Following the applicant company’s appeal and the Council of State’s decision to refer the case for a preliminary ruling to the Court of Justice of the European Union (“CJEU”), by the judgment no. 5929 of 16 October 2018 the Council of State disapplied Article 3 quinquies of Decree-Law no. 16 of 2 March 2012 and annulled the 2013 AGCOM regulations. Relying on the judgment of the CJEU of 26 July 2017, the Council of State stated that the independent assessment of matters coming before a national regulatory authority and the regularity and foreseeability of its decisions shall be protected against external intervention or political pressure. By suspending and then annulling the beauty contest, national authorities had encroached on the competences reserved to AGCOM (riserva di amministrazione indipendente). The Council of State rejected the applicant company’s request to annul the new call for tenders and ordered AGCOM to reassess retroactively (ora per allora) and in full autonomy whether it would have been in the public interest to finalise the beauty contest – by allocating the frequencies to the applicant company and possibly awarding damages for the delayed allocation – or to confirm the legislative choice in favour of the new selection procedure and maintain the allocation of frequencies to the winner bidder.
In 2019 AGCOM decided to confirm the new selection procedure. Considering that this decision did not comply with the judgment of the Council of State no. 5929 of 2018, the applicant company brought a new set of proceedings, requesting the enforcement of that judgment (giudizio di ottemperanza). By a judgment no. 6622 of 3 October 2019, the Council of State dismissed the application.
Invoking Article 10 of the Convention, the applicant company complains of the interference by the Ministry and Parliament in the beauty contest procedure and of the lack of foreseeability of the legal framework governing access to digital terrestrial television market.
QUESTION TO THE PARTIES
Having regard to the suspension by the Ministry and subsequent annulment by Parliament of the beauty contest procedure, has there been a violation of the applicant company’s right to freedom of expression, in particular its right to impart information and ideas, contrary to Article 10 of the Convention (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 129-143, ECHR 2012)?