The case concerns Italian company Centro Europa 7, which in 1999 gained rights for terrestrial television broadcasting at national level on the basis of the Italian frequency allocation plan. But this plan has never been implemented, meaning that the small company has never exercised its right.
A series of transitional measures adopted by the Italian legislators and justified by the on-going shift to digital technology has since guaranteed a temporary legal framework in favour of the status quo.
The space left empty by Europa 7 was filled by current incumbent Rete 4, one of the three national TV channels belonging to the former Italian prime minister Berlusconi.
After a long legal dispute in Italy, the case was brought before the European Court. The ruling may now force Rete 4 to move from analogue technology, currently the most-used by Italian audiences, to satellite, which instead has limited penetration and consequently generates less advertising revenue.
The European Court concluded that the transitional measures adopted in Italy "had the effect of preventing operators without broadcasting radio frequencies from accessing the market in question". The ruling did not address the system of public allocation of radio frequencies, which "is capable of being justified by general-interest objectives". The judgement focused instead on the Italian application of the allocation system that, by protecting incumbents in an unfair way, violates European competition rules, stated the Court.
"The judgement confirms that the Italian regime for managing the transition from analogue to digital TV favours the incumbent operators by granting them on an exclusive basis and for an indefinite period a privileged position without any obligation to give back the excess analogue frequencies once the transition had been completed," commented Information Society Commissioner Viviane Reding.
The most-recent Italian law governing the transition to the digital system, called "Gasparri" after the name of the right-wing MP who wrote it, is currently subject to an infringement procedure for its incompatibility with EU competition rules.
The ruling comes at a very delicate moment for Italian politics, with the former chair of the Senate, Franco Marini, charged by President of Republic Giorgio Napolitano to form a new interim government after the collapse of Romano Prodi's coalition. The objective of the temporary executive is to change the electoral law in order to give Italy a more stable political system.
However, due to fierce opposition from the centre-right run by Berlusconi and lack of agreement among the centre-left parties, the attempt at the moment seems destined to fail.