EJTN ADMINISTRATIVE LAW TRAINING Brussels, 9-10 April 2019 Changing Administrative Law Procedures in Europe Working Group 1 The scope of Administrative Jurisdiction: control of the Administration vs. Substitution Cons. ROSA PERNA Tar del Lazio - Rome 1
EJTN ADMINISTRATIVE LAW TRAINING Brussels, 9-10 April 2019 The scope of Administrative Jurisdiction: control of the Administration vs. Substitution 1. Case - Persidera SpA (Persidera) against the Ministry of the Economic Development and AGCOM: European Court of Justice: C-560/15 (26.7.2017); Consiglio di Stato: n. 5929/18 (16.10.2018). 1
The topic Italian recent case: conversion of analogue frequencies to digital frequencies of the terrestrial television Principles applied in electronic communications law - parameter for ECJ in a preliminary ruling (C-560/15, 26 July 2017) National proceedings started by Persidera SpA, (“Persidera”), Italian network operator, for the assignment of television frequencies in Italy On October 16, 2018 Council of State decision no. 5929/2018 (following C 560-15) 9-10/4/2019 3 .
• Case C-560/15, Europa Way and Persidera. Cancellation of the beauty contest and independence of the NRAs - 2007 European Commission: the assignment and management of radio and television frequencies in Italy incompatible with the Community system In view of the transition to the digital system-->> legislative and - regulatory framework for the entry into the market of new operators: a beauty contest (Resolution 497/10/CONS) – certain requisites - to - be accessed for free → some multiplexes assigned to small new entrants on the market; - the remaining part, free offer by all operators. .- 9-10/4/2019 4
Case C-560/15 - 2 -Suspension of the beauty contest (Ministerial Decree, Law Decree n. 16/2012 converted into Law 26 April 2012, No. 44) – -Replacement with a procedure of onerous public selection (Resolution 277/13/CONS), limited to new entrants and small operators Persidera no participation but appeal against cancellation of beauty contest and its replacement Interpretative questions from the Council of State to the Court of Justice 9-10/4/2019 5
Case C-560/15 – The ruling of the ECJ - Member States must guarantee the independence of the National Regulatory Authorities (NRAs) so that they can exercise their powers impartially and in a timely manner. To this end, the independence of an NRA " would be jeopardised if - external bodies … were permitted to suspend, or even annul, an on- going selection procedure conducted under the auspices of that authority … 9-10/4/2019 6
Case C-560/15 – The ruling of the ECJ - 2 At to the replacement of the beauty contest: The Directives do not preclude the conduct of a fee-based selection procedure “ provided … that that procedure is based on objective, transparent, non-discriminatory and proportionate criteria, and that it is in conformity with the objectives laid down in Article 8(2) to (4) of the Framework Directive” . On this point, “ It is for the referring court to ascertain whether the selection procedure at issue in the main proceedings is in conformity with those requirements” (par. 66). 9-10/4/2019 7
Council of State 5929/2018 after C- 560/15 ? ? ? Which you believe may have been the decision of the Council of State in this specific case? Why? What would your decision be in the case in question? Why? Did the judge have the power to go into the merits of the Regulatory Authority's assessments, when these support policy choices? and to guide those choices? and to what extent? 8
Council of State 5929/2018 after C- 560/15 Taken up the arguments contained in the ECJ ruling which had in fact recognized the incompatibility of such a regulatory suspension of the beauty contest with the European legislation on the subject. 9-10/4/2019 9
Council of State 5929/2018 – 2 Upholds (partially) the appeals, Leaves to AGCom the power to choose in full autonomy (whether "[...] to conclude the free competition [i.e., the beauty contest], … or accept contents, criteria, conditions and outcomes of the onerous competition [...] " ); gives some criteria. 9-10/4/2019 15
Many thanks for Your attention !! 9-10/4/2019 11
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