CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 novembre 2025

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s2C3C2C2 { margin-top:24pt; margin-bottom:10pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s1EA6ED3F { margin-top:0pt; margin-bottom:14pt; text-align:center; font-size:2pt } .s24E6874 { margin-top:0pt; margin-bottom:18pt; text-align:center } .s780F5245 { border:0.75pt solid #000000; clear:both } .s795B4A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:11pt } .sEBD403DD { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; font-size:8pt } .sD37EA1D6 { margin-top:0pt; margin-bottom:0pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:9pt } .s16ED2A02 { margin-top:0pt; margin-bottom:4pt; text-align:center; font-size:8pt } .s96B1B5AB { margin-top:0pt; margin-bottom:10pt; text-align:center } .s2E1B62A9 { margin-top:0pt; margin-bottom:6pt; text-align:center } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA43C3626 { width:28.35pt; font-family:Arial; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s329183A { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-size:14pt; text-transform:uppercase } .sE5EEB06B { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-indent:-18.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s3936C9DD { width:11.78pt; font:7pt 'Times New Roman'; display:inline-block } .sBB64854C { width:8.45pt; font:7pt 'Times New Roman'; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE8F2C496 { width:5.11pt; font:7pt 'Times New Roman'; display:inline-block } .sAB798EC2 { width:3.78pt; font:7pt 'Times New Roman'; display:inline-block } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s119C1441 { margin-left:7.05pt; margin-bottom:12pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s5BDECA8 { width:5pt; font:7pt 'Times New Roman'; display:inline-block } .s7D18490B { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sFBC99493 { font-style:italic } .sD62BB3FA { width:7.11pt; font:7pt 'Times New Roman'; display:inline-block } .s6F9C7ED9 { margin-left:18.45pt; margin-bottom:12pt; text-indent:-18.45pt; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8113DDA4 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; font-family:Arial; font-weight:bold } .s3F0D5878 { width:5.66pt; font:7pt 'Times New Roman'; display:inline-block } .s99272BBB { margin-left:8.5pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s54B12A03 { width:6.99pt; font:7pt 'Times New Roman'; display:inline-block } .s7ED160F0 { text-decoration:none } .sA527F4CF { font-size:8pt; vertical-align:super; color:#0069d6 } .s2FA28896 { margin-left:8.55pt; margin-bottom:6pt; text-indent:-17.05pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt; font-weight:bold; font-style:normal } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s507990D1 { margin-left:8.5pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-weight:normal; font-style:italic } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .s9CB9BE2 { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-family:Arial; font-size:10pt; font-style:italic } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sD8E89A4 { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-size:10pt; font-weight:bold } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s452883D { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s9804041A { margin-top:14pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s7B868B6A { width:9.85pt; font:7pt 'Times New Roman'; display:inline-block } .sF0C78780 { margin-top:14pt; margin-left:17pt; margin-bottom:3pt; text-indent:-17pt; text-align:justify; font-family:Arial } .s5165BC52 { margin-left:17pt } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s31FAC864 { margin-left:17.05pt; text-indent:-17.05pt; list-style-position:inside } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s264C04A0 { margin-left:17.05pt; text-indent:-17.05pt } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sA7186A9D { width:36.9pt; font-family:Arial; display:inline-block } .s7B051ABA { width:164.45pt; font-family:Arial; display:inline-block } .s1E019DFF { width:46.56pt; font-family:Arial; display:inline-block } .sA49AD2E4 { width:177.11pt; font-family:Arial; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .fixListIndent { list-style-position: inside } FIRST SECTION CASE OF EUROPA WAY S.R.L. v.   ITALY (Application no.   64356/19)     JUDGMENT Art 10 • Freedom of expression • Freedom to impart information and ideas • Suspension by ministerial decree and subsequent annulment by legislation of a bidding procedure for the allocation of frequencies for digital terrestrial television broadcasting which were set out in regulations by the appropriate regulatory authority • Annulment of procedure and replacement by a substantially different one interfered with the applicant company’s ability to obtain use rights over digital terrestrial frequencies • Legal ground of interference found by the national courts to be incompatible with both domestic and European Union law, following the Court of Justice of the European Union’s preliminary ruling, and reapplied by regulatory authority in its reassessment and confirmation of the annulment of the bidding process • Important role of regulatory authorities in upholding and promoting freedom and pluralism of the media • Need to ensure their independence given the delicate and complex nature of their role • Interference with the exercise of the regulatory authority’s functions undermined its independence • Objective of restoring independent exercise of functions not achieved • Relevant legal framework not foreseeable and not providing sufficient safeguards against arbitrariness • Interference did not meet lawfulness nor “quality of law” requirements   Prepared by the Registry. Does not bind the Court.   STRASBOURG 27   November 2025   FINAL   23/03/2026   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Europa Way S.r.l. v.   Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Erik Wennerström,   Raffaele Sabato,   Frédéric Krenc,   Davor Derenčinović,   Alain Chablais,   Artūrs Kučs , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the application (no.   64356/19) against the Italian Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a limited liability company registered in Italy, Europa Way S.r.l. (“the applicant company”), on 12   December 2019; the decision to give notice to the Italian Government (“the Government”) of the complaint under Article 10 of the Convention concerning the suspension and subsequent annulment of a competitive bidding procedure for the allocation of frequencies for digital terrestrial television broadcasting, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 4   November 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the suspension by ministerial decree and the subsequent annulment by legislation of a bidding procedure for the allocation of frequencies for digital terrestrial television broadcasting which had been set out in regulations by the appropriate regulatory authority. The applicant company raises complaints under Article   10 of the Convention. THE FACTS 2.     The applicant company is a limited liability company operating in the television-broadcasting sector. It has its registered office in Rome. It was represented by Mr   F. Ferraro, a lawyer practising in Rome. 3.     The Government were represented by their Agent, Mr   L. D’Ascia. 4.     The facts of the case may be summarised as follows.         The “digital switchover” from 2004 to 2009 5.     To regulate the transition from analogue to digital terrestrial television (“the digital switchover”), section   23 of Law no.   112 of 3   May 2004 (known as the “Gasparri Law”) allowed operators engaged in analogue broadcasting to conduct digital television trials while the networks were being converted. To have access to digital terrestrial broadcasting, analogue operators had to show that they had attained coverage of at least 50% of the national population or of the local catchment area. Section 25(12) of the Gasparri Law required operators to continue to be authorised under individual licences until the conversion of the networks had been completed. 6 .     On 18   July 2007 the European Commission gave a reasoned opinion in infringement proceedings no. 2005/5086. It found that when granting access to the digital terrestrial broadcasting market the Gasparri Law had given unjustified advantage to existing analogue operators, in breach of several EU   rules on competition in the electronic communications networks and services markets and in breach of the EU regulatory framework for electronic communications. 7 .     The issues raised by the European Commission were dealt with by section 8   novies of the Decree-Law no.   59 of 8   April 2008, converted with amendments into Law no.   101 of 6   June 2008. This Law repealed section   25(12) of the Gasparri Law and made the activities of network operators of digital terrestrial frequencies subject to a requirement of general authorisation. Rights to use certain frequencies had to be allocated according to procedures laid down by the Communications Regulatory Authority ( Autorità per le garanzie nelle comunicazioni – AGCOM) in compliance with the principles set out in EU law and based on objective, proportionate, transparent and non-discriminatory criteria. 8 .     On 7   April 2009 AGCOM issued its Resolution no.   181/09/CONS. This set out the criteria for the complete digitalisation of terrestrial networks. AGCOM specified that, in line with European best practice, the allocation of digital frequencies would be organised on a so-called “beauty contest” bidding model (that is, frequencies would be allocated free of charge to operators who fulfilled the conditions listed in the selection procedure) similar to that used in other EU member States. The aim of the process would be to ensure an efficient use of the available digital terrestrial frequencies and to promote technological innovation and the distribution of quality content to as much of the population as possible. 9 .     Section   45 of Law no.   88 of 7   July 2009 amended section 8   novies of Decree-Law no.   59 of 8   April 2008 to specify that the allocation of digital terrestrial frequencies had to be carried out in compliance with the criteria established in AGCOM Resolution no.   181/09/CONS. The Government explained that the rules set out in Resolution no.   181/09/CONS were incorporated into domestic law at the request of the European Commission to ensure a more solid legal basis for the opening of the market to new operators.       The bidding process, its suspension and annulment 10 .     On 23   September 2010 AGCOM issued Resolution no.   497/10/CONS, which set out detailed procedural rules for the allocation of digital terrestrial frequencies free of charge. The Resolution provided for the allocation of a certain number of frequencies which could be operated by multiplexes (broadcasting systems enabling the transmission of several digital terrestrial television services simultaneously). These frequencies were divided into three groups and were to be allocated according to different criteria. The first group included three frequencies (A1, A2 and A3) which were reserved to new entrants and small operators. The second group included two frequencies (B1 and B2) and the third one only one frequency   (C1). Applicants were required to identify the frequencies they wished to compete for. A commission was appointed by the Ministry of Economic Development to assess applications and rate them on the basis of criteria such as the suitability of infrastructure, the business plan and entrepreneurial reliability. Successful bidders were to be identified in separate lists for each frequency. Each list was made up of applicants that had obtained an overall mark of at least 51 points out of 100. 11 .     On 8   July 2011 the Ministry of Economic Development invited bids for the allocation of digital frequencies in accordance with AGCOM Resolution no.   497/10/CONS (the “beauty contest” or “bidding process”). 12 .     On 6   September 2011 the applicant company expressed an interest in participating in the bidding process to compete for one of the frequencies reserved to new entrants and small operators. 13 .     On 13   October 2011 the Commission published a list of those who were allowed to bid. The applicant company was the only bidder for the A1   frequency. 14 .     During parliamentary debates on 16   December 2011, several members of the Chamber of Deputies objected to the allocation of the digital terrestrial frequencies free of charge. They called on the Government to annul the existing bidding process and instead to put in place a selection procedure by which frequencies would be allocated in return for payment. 15.     On 20   January 2012 the Ministry of Economic Development suspended the call for bids by decree for 90 days to carry out an assessment of the technical, legal and policy issues involved in the bidding process. 16 .     On 29   April 2012 Article 3 quinquies of Decree-Law no.   16 of 2   March 2012, converted into Law no. 44 of 26 April 2012, entered into force. The relevant part of it set out “urgent measures for the efficient use and economic exploitation of the radio spectrum ...”, and read as follows: “1. In order to ensure the efficient use and the economic exploitation of the radio spectrum, the rights to use the television broadcasting frequencies referred to in the [bidding process] shall be assigned by means of a call for bids issued within 120 days of the entry into force of this section by the Ministry of Economic Development on the basis of the procedures laid down by [AGCOM]. 2. [AGCOM] shall lay down ... the necessary procedures on the basis of the following guiding principles and criteria: a) the allocation of frequencies to network operators by lots, using fee-based procedures and making the award to the highest economic bidder by means of competitive bidding ...; b) the composition of each lot will be specified on the basis of the degree of coverage...; (c) the duration of the use rights for each lot is to be modulated so as to ensure the timely allocation of frequencies for the purposes established by the European Commission ... 3. [AGCOM] and the Ministry of Economic Development shall promote all practicable action to ensure effective competition and technological innovation in the use of the radio spectrum and to ensure its efficient use and economic exploitation ... ... 6 ... The call for bids published in the Official Gazette of the Italian Republic, 5th special series, No. 80 of 8 July 2011 and related bidding specifications are annulled ...” 17.     Article   3 quinquies of Decree-Law no.   16 of 2012 also amended section   8 novies of Decree-Law no.   59 of 2008 (see paragraph 9 above) by eliminating all reference to the rules set out in AGCOM Resolution no.   181/09/CONS, which allowed the allocation of digital terrestrial frequencies free of charge and defined the number of available frequencies and the criteria for their allocation. 18 .     The amendments also provided for compensation (“ indennizzo ”) for those who had taken part in the original bidding process. A total of 600,000   euros   (EUR) was distributed to the bidders in proportion to the number of frequencies they had applied for (decree of the Minister of Economic Development of 6   November 2015). Since the applicant company had applied for only one frequency, it received EUR   46,153,85 (decree of the Minister of Economic Development of 4 January 2016).     The fee-based selection procedure 19 .     Following a public consultation, on 11   April 2013 AGCOM issued Resolution no.   277/13/CONS approving rules for the allocation of digital terrestrial frequencies in accordance with Article 3 quinquies of Decree ‑ Law no.   16 of 2012 (see paragraph 16 above). The multiplexes referred to in AGCOM Resolution no. 497/10/CONS were reorganised into two groups (L   and U) and only the first of them was made available for allocation. In particular, the new procedure concerned three multiplexes (L1, L2 and L3) for which only new entrants and small operators were allowed to bid. The Resolution required frequencies to be awarded to the highest bidder. The Government specified that an opening bid of approximately EUR   30 million was set for each of the three multiplexes. 20.     On 12   February 2014 the Ministry of Economic Development published a new call for bids under the rules set out in AGCOM Resolution no. 277/13/CONS (the “fee-based selection procedure”). 21 .     There was only one bidder in the fee-based selection procedure, namely C.N. s.r.l., which offered EUR   31,626,000 for multiplex L3. On 31   July 2014 it was allocated those use rights.    administrative court Proceedings    Proceedings in the Regional Administrative Court 22.     On 19   March 2012 the applicant company challenged the suspension of the bidding process in the Lazio Regional Administrative Court ( Tribunale Amministrativo Regionale, “the TAR”). 23.     Following the entry into force of Article   3 quinquies of Decree ‑ Law no.   16 of 2012, the applicant company also challenged the annulment of the bidding process and its replacement by the fee-based selection procedure. It asked the TAR to order the national authorities to resume the original bidding process and to compensate those whose bids had been annulled. 24.     On 25   September 2014 in judgment no.   9982 the TAR joined the applicant company’s applications and dismissed them. With regard to the complaint that by annulling the bidding process and imposing principles and operational criteria for a fee-based selection procedure Article   3 quinquies of Decree-Law no.   16 of 2012 had encroached on the regulatory powers of AGCOM, the TAR held that the contested law regulated the procedure for the allocation of digital frequencies only in general terms, and that AGCOM remained free to set the detailed procedure for the allocation of frequencies. Moreover, the fee-based selection procedure was not in breach of EU law, since the European Commission did not require national authorities to allocate digital frequencies free of charge, but only specified that the allocation must be made on the basis of objective, transparent, non ‑ discriminatory and proportionate criteria. 25.     The TAR further dismissed the argument that Article   3 quinquies of Decree-Law no.   16 of 2012 was in breach of the Italian Constitution and of Article   10 of the Convention in so far as it interfered with the exercise of administrative powers. It held that legislative provisions that were in substance administrative (the “ leggi-provvedimento ”) were not necessarily contrary to the Constitution. Moreover, in the specific circumstances of the case, the legislative intervention was not arbitrary, unreasonable or discriminatory towards new entrants into the digital television market. It was justified by the need to reorganise the frequencies available for television broadcasting to free up frequencies for other forms of telecommunications, and to secure economic resources to ensure the financial stability of the State. Moreover, since the allocation by means of a bidding process had been incorporated into law by section 8 novies of the Decree-Law no.   59 of 2008 (see paragraph 9 above), only a legislative provision could have repealed it.    Appeal to the Consiglio di Stato and request for preliminary ruling from the Court of Justice of the European Union (CJEU) 26.     The applicant company challenged TAR judgment no.   9982/2014 in the Consiglio di Stato . 27.     Following a public hearing on 11 June 2015, the Consiglio di Stato (i) dismissed, inter alia , the applicant company’s complaint that Article   3 quinquies of Decree-Law no. 16 of 2012 was in breach of the Italian Constitution and of Article   10 of the Convention (partial judgment no.   4678, deposited at the registry on 9   October 2015); and (ii) stayed the proceedings and asked the CJEU to give a preliminary ruling on the interpretation of several provisions of Directive 2002/21/EC of the European Parliament and of the Council of 7   March 2002 on a common regulatory framework for electronic communications networks and services, OJ 2002 L 108, p. 33 (“the Framework Directive”), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services, OJ 2002 L 108, p. 21 (“the Authorisation Directive”) and Commission Directive 2002/77/EC of 16   September 2002 on competition in the markets for electronic communications networks and services, OJ 2002 L 249, p. 21 (“the Competition Directive”), and EU principles, including information pluralism and the protection of legitimate expectations (order no.   4774, deposited at the registry on 16   October 2015).    Judgment of the CJEU 28 .     On 26   July 2017 the CJEU delivered its judgment in Europa Way and Persidera (C-560/15, EU:C:2017:593). On the annulment by legislation of an on-going selection procedure being conducted by a national regulatory authority (“NRA”), the CJEU stated as follows: “... in accordance with Article   3(2) and (3) of the Framework Directive, read in the light of recital   11 thereof, the Member States must guarantee the independence of the NRAs so that they may exercise their powers impartially, transparently and in a timely manner ... While, in its initial version, the aim of Article   3 of the Framework Directive was essentially, as stated in recital   11 thereof, to guarantee the independence and impartiality of NRAs by ensuring that regulation and operation are functionally separate, the intention of the EU legislature was, by means of Directive 2009/140 and as stated in recital   13 thereof, to strengthen the independence of NRAs in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. ... Recital   13 of Directive 2009/140 states, to that end, that express provision should be made in national law to ensure that, in the exercise of its tasks, an NRA responsible for ex-ante market regulation or for resolution of disputes between undertakings is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. ... In accordance with the first paragraph of [Article   3(3a) of the Framework Directive] ... the NRAs responsible for ex-ante market regulation or for resolution of disputes between undertakings must act independently and cannot seek or take instructions from any other body in relation to the exercise of the tasks assigned to them. ... In accordance with the first paragraph of Article   9(1) of the [Framework Directive], it is for those authorities to allocate the spectrum used for electronic communications services and to issue general authorisations or individual rights of use of such radio frequencies.   Consequently, the conduct of a selection procedure for the allocation of digital radio frequencies, such as the ‘beauty contest’ at issue in the main proceedings, falls within the scope of the exercise of a regulatory task, within the meaning of the Framework Directive, for which an NRA is competent. The independence of such an authority would be jeopardised if external bodies, such as the Minister for Economic Development and the Italian legislature in the case in the main proceedings, were permitted to suspend, or even annul, an on-going selection procedure for the allocation of radio frequencies conducted under the auspices of that authority ...” 29 .     The CJEU therefore reached the following conclusions: “... Article   3(3a) of the Framework Directive must be interpreted as precluding the annulment, by a national legislature, of an on-going selection procedure for the allocation of radio frequencies conducted by the competent NRA in circumstances such as those of the case in the main proceedings which was suspended by ministerial order.” 30 .     The CJEU also addressed the issue of replacing a selection procedure operated free of charge with a fee-based procedure. It held that the Member States enjoy unfettered discretion as to how competitive or comparative procedures are run and whether they are free of charge or fee-based, provided that they are based on objective, transparent, non-discriminatory and proportionate criteria. It also said that it was for the referring court to ascertain whether the conditions set out in the fee-based selection procedure genuinely allowed new operators to enter the digital television market without unduly favouring analogue or digital operators who were already in place. 31 .     A question was raised as to whether the principle of legitimate expectations meant that the bidding process should not have been annulled. The CJEU observed that in the present case the applicant company had not yet been awarded any frequencies, nor had it received any precise, unconditional assurances that it would be awarded them in future. The principle of legitimate expectations therefore did not preclude the annulment of the bidding process on the sole ground that the applicant company had been invited to bid and, as the only bidder, would have been granted use rights to use digital terrestrial frequencies had the procedure not been annulled.    Resumption of proceedings in the Consiglio di Stato 32 .     On 16   October 2018 in judgment no.   5929 the Consiglio di Stato found in part for the applicant company. It referred to the judgment of the CJEU of 26   July 2017 and declined to apply Article 3 quinquies of Decree-Law no.   16 of 2012 because it was in breach of Article   3(3a) of the Framework Directive. It also observed that there are matters that it is not for political authorities to regulate but which are reserved to independent authorities (“ riserva di amministrazione indipendente ”) so that they can ensure that regulatory functions are exercised independently and result in predictable decisions. It also referred to other domestic statutory provisions that strengthened the independence of AGCOM (see paragraph 51 below). 33 .     On that basis, the Consiglio di Stato annulled the administrative acts which – applying Article 3 quinquies – had brought about the replacement of the original bidding process with a fee-based selection procedure without allowing the AGCOM to carry out its own assessment. It did not however annul the call for bids in the fee-based selection procedure or the subsequent acts, including the final award to C.N. s.r.l. (see paragraph 21 above). In that regard, in judgment no.   5929 of 2018 the Consiglio di Stato held that the administrative acts in the fee-based selection procedure should be annulled only in so far as they were linked to the unlawful annulment of the original bidding process. By contrast, the applicant company’s complaints about other alleged violations of law committed in the fee-based selection procedure – for example, alleged breaches of procedural rules or the alleged unlawfulness of selection criteria – were inadmissible as the applicant company had deliberately chosen not to participate in that procedure and therefore had no interest in its details, in particular since those provisions had in no way prevented it from participating. 34 .     As to the effects of its judgment, the Consiglio di Stato observed the following: “The finding that the annulment of the original bidding process was unlawful ... has the effect of requiring AGCOM to reassess, this time completely autonomously and independently, the replacement of the original bidding process with a fee-based selection procedure, which was imposed on it inappropriately by the unlawful intervention by the legislature. That replacement, as the [CJEU] made clear in its judgment of 26 July 2017 in the case C-560/15, was not in itself illegitimate, but it should have been carried out independently, without undue influence, by the NRA on the basis of its own technical assessments. Therefore the annulment ... does not give AGCOM an unconditional obligation to necessarily reactivate the original bidding process, but means it has to re-examine the entire regulatory framework retroactively (“ ora per allora ”), and to assess whether ... to retain the original process or ... to replace it with the fee-based selection procedure ... Such an assessment must necessarily be carried out by [AGCOM] as a preliminary step, since the national court may not substitute its own assessment ... for an assessment which, as the [CJEU] made clear in the present dispute, would have been one for [AGCOM] and [AGCOM] only to carry out, subject, of course, to any subsequent judicial review.” 35 .     The applicant company had complained that it had not been compensated for the damage it had suffered because of the unlawful annulment of the original bidding process. The Consiglio di Stato rejected that complaint on the following grounds. 36 .     As to possible compensation for failure to allocate the frequencies, in judgment no.   5929 of 2018, the Consiglio di Stato said that it could not decide in advance whether the applicant company would have had a right to an allocation, and so could not say whether it had suffered any loss of opportunity, since the decision on how to allocate the frequencies fell within the powers of AGCOM. It concluded therefore: “either: - the [frequencies] which were the subject of the original bidding process will be allocated to the applicant company by [AGCOM] at the outcome of its re-assessment ... and therefore [the applicant company] will have obtained specific redress through that allocation and may also be awarded compensation for the delay suffered as well as ... for not having been able to legitimately use [the frequencies] from the outset for all those years; or - the replacement of the original bidding process with the fee-based procedure, properly re-assessed by [AGCOM] ..., will be found to have been legitimate ...; [in that case] [the applicant company] will have suffered no damage that it could claim for with respect to [frequencies] to which, in the end, it turned out to have no entitlement, not even from the point of view of a loss of opportunity, since the annulment of the original bidding process, once it was confirmed by [AGCOM] in the proper exercise of its powers, would mean that they would never have been awarded [anything].” 37.     With regard to compensation for the expenses the applicant company had incurred by taking part in the original bidding process, the Consiglio di Stato concurred with the judgment of the CJEU of 26   July 2017 that when that process was annulled the applicant company had not received any precise, unconditional assurances that it would be allocated any frequencies in future. There was therefore “no legitimate expectation to be protected nor breach of the principle of good faith in civil matters under Article   1337 of the civil code, irrespective of whether the annulment of the original bidding process turns out to be lawful or unlawful at the end of the reassessment by [AGCOM]”. 38.     On 16   April 2019 judgment no.   5929 of 2018 of the Consiglio di Stato became final.      Reassessment by AGCOM and subsequent proceedings IN the consiglio di Stato 39 .     AGCOM reacted to the Consiglio di Stato ’s judgment no.   5929 of 2018 by confirming the replacement of the original bidding process with the fee-based procedure in its Resolution no. 136/19/CONS of 24 April 2019. The Resolution said that AGCOM “[could] not disregard (“ non può non tener conto ”) the spectrum management policy directions provided by [Article   3 quinquies of Decree-Law no.   16 of 2012]” and that the original bidding process could not be retained “given the specific public finance objective set by the legislature in the exercise of its legitimate prerogatives”. 40.     AGCOM also said that this conclusion took into consideration the readjustment of the frequencies to be allocated under Resolution no.   277/13/CONS, reducing their number from six to three. According to AGCOM, the fee-based procedure would moreover ensure the fulfilment of the competition objectives of the measures agreed on with the European Commission to bring infringement procedure no.   2005/5086 to an end (see paragraph   6 above). Moreover, it was based on objective, transparent, non-discriminatory and proportionate criteria, and offered a way in for new entrants into the digital television market. 41.     The applicant company brought enforcement proceedings ( giudizio di ottemperanza ) in the Consiglio di Stato to challenge AGCOM Resolution no.   136/19/CONS. 42 .     On 3   October 2019, the Consiglio di Stato dismissed the company’s complaints in its judgment no.   6622. It observed that AGCOM had taken the financial interests of the State into consideration in its assessment of whether to retain the original bidding process or confirm the fee-based procedure, and that it had done so not because the legislature had required it to but because it had itself found that those interests were objectively justified and should be taken into consideration. It also stated that sufficient reasons had been given in Resolution no.   136/19/CONS as to how the fee-based procedure complied with the criteria set out in EU law. 43.     On 14   May 2020 the European Commission discontinued the infringement procedure no.   2005/5086.    Other relevant developments 44 .     Article   1(1026)-(1038) of Law no.   205 of 27   December 2017 (the 2018 Budget Law) provided for the reconfiguration of the use rights for digital terrestrial television frequencies (the so-called “refarming of frequencies”). This followed on the one hand the reallocation of the 694-790 MHz frequency band to the fifth-generation telecommunications network (known as “the 5G network”), and, on the other hand, the transition of the remaining frequencies available for broadcasting from the DVB ‑ T transmission system to the (more advanced) DVB-T2 transmission system. 45.     A particularly important provision of the legislation was the power given to AGCOM to adopt a new national plan for the allocation of frequencies for the digital terrestrial television service. AGCOM was required to define the criteria (i) for the conversion of use rights over frequencies existing at the date of entry into force of the law into use rights relating to transmission capacity (“ diritti d’uso di capacità trasmissiva ”) in the national multiplexes in the new DVB-T2 transmission system, and (ii) for the allocation of the use rights over the new frequencies planned for the digital terrestrial television service. 46.     AGCOM made its Resolutions nos. 290/18/CONS and 182/18/CONS under those provisions. 47.     By Law no.   145 of 30   December 2018 (the 2019 Budget Law) the legislature added Article   1(1031- bis ) to the 2018 Budget Law. This provided that the additional transmission capacity that was available at the national level and the terrestrial frequencies which were additional to those intended for the conversion of existing use rights had to be allocated by a fee-based procedure without further invitations to submit bids. That procedure was to be carried through by the Ministry of Economic Development by 30   November 2019, using the process that AGCOM would have set up by 30   September 2019, which itself would be based on certain principles and criteria. 48 .     Several sets of proceedings were brought in the administrative court by companies operating digital terrestrial television networks (including the applicant company) about AGCOM’s proposals for implementing those provisions. The Consiglio di Stato decided to ask the CJEU for a preliminary ruling on the interpretation of several EU laws. The Consiglio di Stato asked, inter alia , whether Articles   3(3) and (3a), and 8 and 9 of the Framework Directive, and Articles 5, 6, 8, 9 and 45 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast), OJ 2018 L 321, p.   36 (“the European Electronic Communications Code”) precluded a system of the kind provided by Article 1(1031- bis ) of the 2018 Budget Law as amended by the 2019 Budget Law, “which deprives the independent administrative authority of its regulatory functions, or at least significantly limits them, by providing for the award of additional transmission capacity by means of a fee-based procedure which includes those who currently hold the rights to the frequencies, with that award being granted to the highest offeror” (orders no. 10415, 10416 and 10419, deposited at the registry on 1   December 2023). 49 .     On 11   September 2025 in its judgment in Cairo Network , C‑764/23, C-765/23 and C‑766/23, EU:C:2025:691, the CJEU reiterated that when regulating how rights to use radio frequencies should be allocated NRAs should be free of outside interference (see paragraph 28 above). It distinguished the questions addressed in its judgment of 26   July 2017 from those currently before it. The present issue was not legislative intervention that might call into question a process after it had begun but rather the definition in advance of certain requirements with which the NRA had to comply when organising and implementing that process. It reiterated that Member States enjoy a margin of appreciation in deciding whether a selection procedure should be operated free of charge or whether it should be fee-based. It also held that it was the States’ responsibility (and not specifically the responsibility of NRAs) to ensure that allocation was based on objective, transparent, non-discriminatory and proportionate criteria (see above paragraph 30). Given the roles of NRAs and the political bodies of Member States, the principles governing the organisation of procedures for the allocation of use rights could be defined by a national legislature, provided that it “confine[d] itself to defining principles which d[id] not have the effect of depriving the national regulatory authority of a substantial margin of discretion in defining the technical details of the procedure for allocating those rights and which require[d] it merely to implement a procedure defined by that legislature”. RELEVANT LEGAL FRAMEWORK AND PRACTICE         Relevant domestic law 50.     The main developments in the Italian television broadcasting sector, from its origins to the beginning of the digital switchover, are described in Centro Europa 7 S.r.l. and Di Stefano v.   Italy [GC], no. 38433/09, §§   49 ‑ 68, ECHR 2012. 51 .     Article 7 of Legislative Decree no. 259 of 1   August 2003 (“Electronic Communications Code”) as amended by Legislative Decree no.   70 of 28 May 2012 and as in force at the material time, read as follows: “... 3 bis . The [AGCOM] shall exercise its powers in an impartial, transparent and timely manner. 3 ter . The [AGCOM] shall have adequate financial and human resources to carry out the tasks assigned to it. The Authority shall operate independently and shall not solicit or accept instructions from any other body in the performance of its functions ...” 52.     Article   1337 of the Civil Code provides that in pre-contractual relations the parties must act in good faith.       European Union law and practice    Relevant European Union law 53.     Recitals   11 and 21 of the Framework Directive as in force at the relevant time were worded as follows: “(11)   In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article [345 TFEU]. ... ... (21) Member States may use, inter alia , competitive or comparative selection procedures for the assignment of radio frequencies as well as numbers with exceptional economic value. In administering such schemes, national regulatory authorities should take into account the provisions of Article   8 [of the Framework Directive].’ 54.     The Framework Directive was amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, which also amended Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and the Authorisation Directive. Recital 13 of that Directive, as in force at the relevant time, stated: “(13) The independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To this end, express provision should be made in national law to ensure that, in the exercise of its tasks, a national regulatory authority responsible for ex-ante market regulation or for resolution of disputes between undertakings is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework ...” 55.     Article   3 of the Framework Directive, as amended by Directive   2009/140/EC and in force at the relevant time, provided: “1.   Member States shall ensure that each of the tasks assigned to national regulatory authorities in this Directive and the Specific Directives is undertaken by a competent body. 2.   Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services. Member States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control. 3.   Member States shall ensure that national regulatory authorities exercise their powers impartially, transparently and in a timely manner. Member States shall ensure that national regulatory authorities have adequate financial and human resources to carry out the task assigned to them. 3a.   Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex-ante market regulation or for the resolution of disputes between undertakings in accordance with Article 20 or 21 of this Directive shall act independently and shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing Community law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 4 shall have the power to suspend or overturn decisions by the national regulatory authorities ...” 56.     The Framework Directive and the Authorisation Directive were repealed by the European Electronic Communications Code with effect from 21   December 2020.   The relevant articles of the European Electronic Communications Code read as follows. “Article   5 - National regulatory and other competent authorities 1.       Member   States shall ensure that each of the tasks laid down in this Directive is undertaken by a competent authority. Within the scope of this Directive, the national regulatory authorities shall be responsible at least for the following tasks: (a) implementing ex ante market regulation, including the imposition of access and interconnection obligations; ... (c) carrying out radio spectrum management and decisions or, where those tasks are assigned to other competent authorities, providing advice regarding the market ‑ shaping and competition elements of national processes related to the rights of use for radio spectrum for electronic communications networks and services; ... Article   6 Independence of national regulatory and other competent authorities 1.       Member   States shall guarantee the independence of national regulatory authorities and of other competent authorities by ensuring that they are legally distinct from, and functionally independent of, any natural or legal person providing electronic communications networks, equipment or services ... 2.       Member   States shall ensure that national regulatory and other competent authorities exercise their powers impartially