CJEU AG finds the Italian legislation on media concentrations not compatible with EU law

22 January 2020

On 18 December 2019, CJEU Advocate General Campos Sánchez-Bordona delivered his opinion in Case 719/18, regarding the compatibility of Italian legislation on media concentrations with freedom of establishment, protected by Article 49 of the Treaty on the Functioning of the European Union. Most notably, by the reference for preliminary ruling the Regional Administrative Court of Lazio (TAR Lazio) has requested the Court of Justice to assess whether EU law prevents Member State to adopt national provisions like the Italian ones which prohibit a company from receiving, directly or indirectly, through controlled or affiliated companies, revenues amounting to more than 20% of the revenues of the Integrated Communications Systems (“Sistema Integrato delle Comunicazioni”, so called “SIC”) for the sake of media pluralism.

According to the AG, even if the restrictions placed by the Italian legislation pursue an overriding reason in the public interest, namely the protection of pluralism, capable of justifying an interference with the freedom of establishment, such measures must in any case be proportionate to such goal. Even if it is for national courts to assess the proportionality of the restrictions at issue, in the view of AG Campos Sánchez-Bordona the Italian legislation – as interpreted by the Italian Communications Authority – defines too restrictively the electronic communications sector, excluding markets which have become new means for accessing media, such as retail mobile telephone services, Internet-related electronic communications services and satellite broadcasting services. Also, the AG doubts that the 10% threshold of revenues in the SIC for companies accounting revenues for more than 40% of the overall revenues of the electronic communications sector is proportionate to the aim pursued. Finally, the AG considers that calculating the revenues of affiliated companies as if they were controlled ones is a disproportionate measure as well, at least to the extent that, depending on the distribution of voting rights, a company might not necessarily exert a considerable influence on the other one.

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