Judgment concerning Italy
In the case of Europa Way S.r.l. v. Italy the Court held that there had been a violation of the right to freedom of expression.
The case concerned the allocation of frequencies for digital television broadcasting.
The applicant company had taken part in a bidding process in 2011 which was to allocate digital terrestrial frequencies free of charge. The rules for the process had been set out by AGCOM, the communications regulatory authority. This process had, however, subsequently been suspended by ministerial decree, annulled by a new law in 2012 and replaced with a fee-based selection procedure in 2013. The applicant company challenged these measures in the courts, unsuccessfully.
The Court stressed the important role played by regulatory authorities in upholding and promoting the freedom and pluralism of the media, and the need to ensure their independence. It found that the national courts themselves had refused to apply the 2012 law, finding it to be incompatible with EU law and that applying it would have unlawfully undermined AGCOM’s regulatory powers. It was therefore clear that the domestic law did not allow the suspension by ministerial decree and the annulment by the legislature of the original bidding process. It also found that the applicant company could have reasonably expected that its application for a frequency would be assessed according to the regulatory framework in force at the time. Amending the rules and criteria that AGCOM had legitimately decided in the exercise of its regulatory powers in that process had clearly undermined its independence.
The Court therefore concluded that the legislative and administrative framework on the allocation of digital terrestrial frequencies had not provided adequate safeguards against arbitrariness, in breach of the applicant company’s freedom to impart information and ideas.