C-320/90

TELEMARSICABRUZZO

OPINION OF ADVOCATE GENERAL GULMANN delivered on 6 October 1992

Mr President, regulation at both international and national Members of the Court, level.

1. The Vice Pretore di Frascati (Deputy Television broadcasting is carried out within Magistrate of Frascati) has referred to the specific frequency bands (television chan­ Court of Justice for a preliminary ruling nels). The reception from television transmit­ identical questions in three cases pending ters is normally limited to areas which are before him. The questions are worded as fol­ within sight of the transmission antenna. lows: Within a minimum distance (depending on frequency band, emission effects, antenna design and so forth) it is not possible for two '1 . Does the fact that the Italian Govern­ transmitters to operate on the same fre­ ment has reserved for itself the use of various quency without causing interference with television broadcasting channels, prohibiting each other. the private sector from availing itself of UHF channels 67 to 99, and in particular channels 67, 68 and 69, constitute an The Italian rules on the allocation of radio infringement of Articles 85(3) and 86 of the frequencies relevant to the present cases were Treaty of Rome, where no rules on the coor­ adopted in 1983. 1 These provided inter alia dination of the use of those channels have as follows: been adopted?

2. Is such conduct compatible with the 1. Frequency bands between 470 and Treaty of Rome and the competition rules 862 MHz were to be used by the Ministry of contained therein?' Posts and Telecommunications in drawing up plans for the allocation of frequencies to public and private television broadcasting 2. The following are the facts and legal back­ stations. ground to the cases:

Among other things, the authorities pointed out that the 'technical coordination' referred to above, which was a precondition of the The jurisdiction of the national court mak- use by private companies of the channels in ing the references question, had not been carried out by the Ministry of Posts and Telecommunications 2 5. It appears from the documents in the case and the Ministry of Defence. 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 companies contested those orders before the legislation relevant to a resolution of the the competent administrative court, which cases. The Constitutional Court rejected the upheld the orders as described in the Report questions as inadmissible on the ground that for the Hearing. It was not until later, in they had been referred to it by a court which 1987 and 1988, that the companies brought manifestly lacked jurisdiction to deal with the cases in question. That decision 3pro­ vided, inter alia, as follows: 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 frequen­ cies in question by the army, police and the public conces­ sionary undertaking RAI. 3 — Decision No 102 of 2 March 1990.

I-410

TELEMARSICABRUZZO

. .] . In this case, a decision Treaty, only a court or tribunal which con establishing unconstitutionality would be siders that a decision on a question 'is neces deprived of its proper consequences inas sary to enable it to give judgment' may refer much as it would remain inapplicable to the that question for a preliminary ruling. A specific cases which gave rise to it. court or tribunal lacking jurisdiction cannot give a judgment and there can consequently never be a need for such a court to obtain a

ment . . .)'. tion to give a decision in the main proceed ings. The basic premiss adopted by the Court of Justice in this regard is that it is up 6. The Italian Government has argued that to the national legal order to prevent ques the Court of Justice should go along with the tions being referred by courts or tribunals reasoning which led the Italian Constitu which lack jurisdiction and that it should tional Court to declare the questions submit itself continue to deal with a reference so ted to be inadmissible by making a similar long as it has not been withdrawn or declaration in respect of the questions here at revoked. 5Any different premiss would have issue. It points out that a ruling on the implied that the Court itself was required to present references cannot contribute to the examine the jurisdiction of the court malung decisions in the main proceedings because the reference to give a decision in the main the court making the references does not proceedings — an examination which might have jurisdiction to deal with those proceed have necessitated a problematic consider

. . the Court held in its judgment of 11 June 1987 (Case 14/86 Pretore di Salo v Persons unknown [1987] ECR 2545) that its jurisdiction to reply to a request for a preliminary ruling is subject to the require-ment that the request ema nates from a court or tribunal which has acted in the general 7. The Italian Government's views on the framework of its task of judging, independently and in accordance with the law, cases coming within the jurisdiction significance of the absence of jurisdiction in conferred on it by law.' (emphasis added). the national court in this regard enjoys sub 5 — Judgment in Case 146/73 Rheinmuhlen-Dusseldorf v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel stantial support in the case-law of the Court [1974] ECR 139.

expressed itself as follows in its judgment in 10. It may be useful to mention at the outset Case 65/81: 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 cir­ '... in view of the distribution of functions cumstances in which the Court will decline between itself and the national court, it is not to answer questions in a preliminary refer­ for the Court to determine whether the ence on the ground that they have been decision whereby a matter is brought before referred by a court which has no (longer) it was taken in accordance with the rules of jurisdiction to deliver a decision in the main national law governing the organization of proceedings, even though such lack of juris­ the courts and their procedure. The Court is diction has not been determined in the man­ therefore bound by a decision of a court or ner outlined above and even though the tribunal of a Member State referring a matter Court must in this base its decision to some to it, in so far as that decision has not been extent on an assessment of national rules. rescinded on the basis of a means of redress The Court thus ruled in its judgment in Case 7 provided for by national law. 338/85 Pardini that it 'has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure It follows from those considerations that before the court malting it has already been where a court of a Member State brings a terminated' and the Court accordingly exam­ matter before the Court of Justice under ined whether the case in question had still Article 177 of the EEC Treaty the Court has been pending under national procedural jurisdiction, under that provision, to answer rules before the court making the reference the questions raised without there being any at the time when that reference was made. need to consider first whether the decision malting 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). 11. There is in my opinion good reason to consider malting a correspondingly limited exception to the general rule in the present As the orders for reference in the present cases, given that it can be assumed on the cases have not been withdrawn and as there basis of the information available that the is nothing to suggest that they have been Court's reply to the questions submitted will rescinded, the Court's well-established prin­ be delivered to a court whose decisions in ciple that questions submitted should be the main proceedings will not be recognized examined directly requires that the questions by the Italian legal system on the ground of in the present cases should be answered. its manifest lack of jurisdiction.

correct in view of the very special circum matter for the national court to determine stances of these cases, in which the court whether the questions of Community law to making the references has been found by the which a case before it gives rise are relevant Constitutional Court, on the basis of the and whether a preliminary ruling is neces clear and consistent case-law of the highest sary to enable that court to give judgment. Italian judicial bodies, clearly to lack juris The Court of Justice, however, has reserved diction to deal with the main proceedings. to itself the possibility of declining to answer questions which 'bear no relation to the real ity or the subject-matter of the main pro ceedings' and which are therefore 'not man- In those circumstances, I do not believe that ifestly relevant to a decision in the main conclusive significance should be attached to proceedings'. Replies do not have to be given the fact that the national court's lack of juris

The that the fact that the orders making the ref competent court which will subsequently be erences have not been withdrawn may be required to deal with the case will in any attributable to the absence under Italian law event still be entitled to make a reference. of any procedure by which appeals may be brought against decisions referring questions 14. The court which made the references has to the Court of Justice for a preliminary rul attempted to explain why it considers itself ing. to be entitled to refer questions to the Court of Justice for a preliminary ruling, notwith standing the decision of the Italian Constitu While that fact clearly does not by itself tional Court regarding its lack of jurisdic resolve matters in the present context, it may tion. perhaps be put forward as an argument in support of creating an exception to the It stated as follows in the order for reference Court's general principle as outlined above. in Case C-321/90: It cannot entirely be discounted that the absence of a possibility of appeal may result 'With regard to lack of jurisdiction: there are in cases where abuse of the preliminary ref two reasons why it is not possible to com erence procedure cannot be prevented by the application of national legal rules. ment on this objection at the present stage: in the first place, Community law takes pre cedence over national law at both substantive

I-413

OPINION OF MR GULMANN — JOINED CASES C-320/90, C-321/90 AND C-322/90

liminary ruling therefore takes precedence The Court ruled as follows: over the objection of absence of jurisdiction.

One example of this is Case 179/84, Bozzet- 9 ti, in which the jurisdiction of the court making the reference depended under Italian 16. It is therefore in principle left to the Ital­ law on whether or not the Community's ian legal order to fix its national rules of co-responsibility levy on milk constituted a court procedure and there is in my view tax. 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 9 — Judgment in Case 179/84 Bozzetti v Invernizzi and Minis- tero del Tesoro [1985] ECR 2301. cases such as the present.

I-414

TELEMARSICABRUZZO

It strikes me as obvious in any event that the The grounds of the orders for reference reasons given by the court making the refer­ ences for declining 'at the present stage' to address the issue of jurisdiction are not rele­ vant in that connection. 18. The Commission has pointed out in its written observations that one feature of the orders for reference is that they are particu­ Viewed in isolation, the principle of the pri­ larly 'laconic and give sparse details of the macy of Community law cannot affect the elements of fact and law such as to make it results of the application of the Italian rules possible to identify the purpose of the ques­ on the jurisdiction of courts. tions of interpretation and thus to compre­ hend their meaning and scope'.

In case the Court takes a different view as to This situation is highlighted by the fact that the result, I would comment as follows on one of the three applicant undertakings pref­ the other issues to which the cases give rise. aces its brief written observations to the

I-415

OPINION OF MR GULMANN — JOINED CASES C-320/90, C-321/90 AND C-322/90

Court (in Case C-322/90) with the declara­ That is why the Court has consistently tion that: stressed that:

I - 416

TELEMARSICABRUZZO

is also important because it is necessary to mitted, with the result that major difficulties give Member States and other interested par­ are placed in the way of formulating an ties an opportunity to submit observations appropriate reply. under Article 20 of the Statute of the Court of Justice, and that

13 — See judgment in Joined Cases 141/81 to 143/81 Holdijk and The inadequacy of the grounds given for the Others [1982] ECR 1299, paragraph 6. questions in the present cases, however, may 14 — See, for example, the Court's judgment in Case 14/86 Pre- tore di Salo, cited above, paragraph 16. prompt the Court to emphasize in its judg-

I-417

OPINION OF MR GULMANN — JOINED CASES C-320/90, C-321/90 AND C-322/90

ment (a) the need for orders for reference to with the Treaty rules on competition, inas­ contain such information on the legal and much as those rules and their application factual background to the questions submit­ may discriminate between the public conces­ ted as the Court requires for its replies and sionary company RAI and the private com­ (b) that failure to do so may render the panies. Court unable to answer the questions.

22. The questions submitted request the 25. The Court can therefore, in my opinion, Court to interpret the Treaty rules on com­ confine itself to interpreting Article 90 of the petition in the context of a situation where a Treaty, in conjunction with Article 86, with a number of specified television channels can­ view to deciding whether the conduct of the not be used by private undertakings, on the authorities described above infringes the ground that they are reserved for the use of prohibition in Article 90 on Member States, public authorities so long as the planned in the case of public undertakings and under­ 'technical coordination' has not been carried takings to which they grant special or exclu­ out, the latter constituting a precondition of sive rights, enacting measures in breach of the use by private undertakings of the televi­ the Article 86 prohibition of abuse of a dom­ sion channels in question. 15 inant position.

It appears from the written observations 15 — There is, in my opinion, nothing in the documents on the submitted by the television companies in cases to warrant an interpretation of the other prohibitive Cases C-320/90 and C-322/90 that the ques­ rules referred to in Article 90. It may be useful to point out that the alleged discrimina-tion against the private compa­ tions were motivated by uncertainty as to nies and in favour of RAI is in any event not based on nationality and consequently does not infringe the prohibi­ the extent to which the relevant Italian rules tion set out in Article 7 of the Treaty. There is also nothing and their practical application to the three to suggest that the prohibition in Article 59 of the Treaty has any relevance to the present cases (on this, see the con­ private television companies were at variance clusion of point 28 below).

18 — At point 39 of his Opinion in Joined Cases C-48/90 and It follows from the Court's extensive and C-66/90 Netherlands and Others v Commission [1992] 7 ECR I-565, Advocate General Van Gerven gave the follow­ comprehensive case-law in this area 1 that ing summary of the Court's case-law: Member States may not adopt or maintain in 'It appears, I think, from that case-law that the Court's view is that the provisions of Article 90, in conjunction force measures 'which may deprive of their with those of Articles 85 and 86, cover State measures ... which encourage, require or make inevitable conduct by effectiveness the competition rules applicable undertakings winch, whatever its nature, is prohibited by Articles 85 and 86, and measures which delegate to under- to undertakings'. The Court has identified a takings a duty of regulating competition such as ought to be variety of groups of cases where public mea­ performed by the authorities [emphasis added] . The [cen­ tral] consideration [in this case-law is] that such State mea­ sures breach Article 90 in conjunction with sures, in combination with one form or another of conduct by an undertaking, have the same effects with regard to tile Article 86. In broad terms, this practice can structure of competition on the Community market as con­ be interpreted as an application of the prin­ duct 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 16 — Case C-260/89 ERT-AE v DEP [1991] ECR I-2925. even be the inevitable conse-quence thereof. Nor is it nec­ essary for the undertaking itself to have committed an 17 — In addition to the above judgment in the ERT case, men­ inten-tional-infringement of the rules of competition (in tion might also be made of the Court's judgments in Case other words, it is enough for it to be placed in a situation in C-41/90 Hofner and Eher v Macrotron [1991] ECR which it cannot act otherwise than by restricting compe­ I-1979 and in Case C-179/90 Mera Convenzionali Porto di tition).' Genova v Siderurgica Gabrielli [1991] ECR I-5889.

28. So far as can be ascertained, the three television companies are not contesting the For the sake of completeness, however, I principles laid down in the Italian rules, but might point out that it is in any event a con­ rather the fact that the planned technical dition of the application of Article 90, in coordination has not yet taken place. 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 It cannot be ruled out that the administra- Member States. tion 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 In any individual case it is the task of the strong evidence that the allocation of radio national court to determine whether or not frequencies, objectively justified in principle, those conditions have been satisfied. is actually being used to promote the abuse of a dominant position by a public undertak­ ing. I do not believe that there is any such However, it may be useful to note that it is evidence in the cases at present under con­ not at all certain that RAI occupies a domi­ sideration, which in any event relate to an nant position on the relevant market. The extremely limited number of the television Commission addressed this question to a channels which can in theory be used. certain extent in its oral observations. It argued that RAI scarcely had a dominant 20 position at national level. It would appear prima facie probable that that view is correct, particularly if one takes account of the large I might point out that no information was number of private television stations at both provided during the course of the procedure national and local level in Italy. to suggest that the special circumstances relating to the retransmission of foreign tele­ vision programmes, such as were relevant to the Court's judgment in the ERT case, exist There is no information in the cases which 19 in the present cases. would make it possible to determine whether conditions may be different on the local mar-

ket relevant to the main proceedings, or There is, admittedly, information to suggest whether the local market in this instance that RAI, to a certain degree which in any makes up a substantial part of the common event is undocumented, was authorized to market. use the UHF television channels 67 to 69, and it has been established that the authori­ ties 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 spe­ 30. I might point out in conclusion that the cial status for the purpose of protecting conduct of the Italian authorities in the objectives of a public nature which can and present cases did not, as I see it, involve an must be taken into consideration in the con­ abandonment of the principle of 'equality of text of television broadcasting. There is no opportunity for all economic operators'. The doubt that RAI has been given a special sta­ Court, as will be generally known, applied tus in several respects, in the same manner as that principle and in my opinion, in the con­ its counterparts in the other Member States. text of the present cases, applied it correctly, Such a status, however, carries with it obliga­ in its judgment in Case C-202/88 France v tions as well as rights. In principle, this spe­ Commission [1991] ECR I-1223 (the market cial status may also justify preferential treat­ in telecommunications terminal equip­ ment when it comes to the allocation of ment). 21 The Court pointed out that the television channels. Furthermore, RAI's spe­ principle was necessary in order to guarantee cial status with regard to the allocation of 'a system of undistorted competition, as laid television channels in the context of the down in the Treaty'. present cases is, according to the information supplied by the Italian Government, justified by the fact that it is already possible, by vir­ tue of RAI's position as a public concession­ ary company, to ensure the necessary techni­ cal coordination and thereby avoid interference with the other existing uses It is not necessary in the present cases to dis­ made of the radio frequencies in question. cuss the prospects of establishing, on the basis of the substantive Treaty rules govern­ ing competition, a generally valid and directly applicable principle of 'equality of opportunity for all economic operators'.

The competition rules in the EEC Treaty, and particularly Article 90 in conjunc­ tion 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.

I-422