Avis juridique important

Judgment of the Court of 26 January 1993. - Telemarsicabruzzo SpA v Circostel and Ministero delle Poste e Telecomunicazioni and Ministero della Difesa. - References for a preliminary ruling: Pretura di Frascati - Italy. - References for preliminary rulings under Article 177 of the EEC Treaty. - Joined cases C-320/90, C-321/90 and C-322/90.. European Court reports 1993 Page I-00393 Swedish special edition Page I-00001 Finnish special edition Page I-00001

Summary Parties Grounds Decision on costs Operative part

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Preliminary rulings ° Jurisdiction of the Court ° Limits ° Question submitted in a context which precludes a useful reply

(EEC Treaty, Art. 177)

The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the field of competition, which is characterized by complex factual and legal situations.

In Joined Cases C-320/90, C-321/90 and C-322/90,

REFERENCES to the Court under Article 177 of the EEC Treaty by the Pretura di Frascati, Italy, for a preliminary ruling in the proceedings pending before that court between

Telemarsicabruzzo SpA

and

Circostel, Ministero delle Poste e Telecommunicazioni and Ministero della Difesa,

and between

Telaltitalia Srl

and

Circostel, Ministero delle Poste e Telecommunicazioni and Ministero della Difesa,

and between

Telelazio SpA

and

Circostel, Ministero delle Poste e Telecommunicazioni and Ministero della Difesa

on the interpretation of Articles 85, 86 and 90 of the EEC Treaty with regard to the conduct of the Italian Government in the allocation of UHF channels for television broadcasting,

THE COURT,

composed of: O. Due, President, C.N. Kakouris, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: C. Gulmann,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Telemarsicabruzzo SpA, by Giorgio Rubini, of the Frascati Bar,

° Telelazio SpA, by Fabrizio Paoletti, of the Rome Bar,

° the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Legal Department of the Ministry of Foreign Affairs, acting as Agent, assisted by Sergio Laporta, Avvocato dello Stato,

° the Commission of the European Communities, by Enrico Traversa, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Italian Government and the Commission at the hearing on 9 June 1992,

after hearing the Opinion of the Advocate General at the sitting on 6 October 1992,

gives the following

Judgment

1 By orders of 4 September 1990, received at the Court on 22 October 1990, the Vice Pretore (Deputy Magistrate) of Frascati (Italy) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of the Treaty provisions on competition in order to determine whether certain aspects of a national system for the distribution of radio and television broadcasting frequencies were compatible with Community law.

2 Those questions arose in disputes between, on the one hand, the companies Telemarsicabruzzo, Telaltitalia and Telelazio, which owned radio and television transmitters, and, on the other, Circostel (Circolo Costruzioni Telegrafiche e Telefoniche di Roma (Department for the Construction of Telegraph and Telephone Networks in Rome)), the Ministry of Posts and Telecommunications and the Ministry of Defence.

3 By way of explanation for those questions, the Vice Pretore of Frascati merely quotes, in Cases C-320/90 and C-322/90, Article 86 of the EEC Treaty and states that it prohibits all forms of monopoly. In Case C-321/90, the Vice Pretore adds that a problem of jurisdiction was raised before him. However, he considers that given the primacy of Community law he cannot examine that objection before referring questions to the Court for a preliminary ruling. He also points out that even if he lacks jurisdiction those questions are justified on grounds of procedural economy.

4 The questions formulated by the Vice Pretore of Frascati are as follows:

"1. Does the fact that the Italian Government has reserved for itself the use of various television broadcasting channels, prohibiting the private sector from availing itself of UHF channels 67 to 99, and in particular channels 67, 68 and 69, constitute an infringement of Articles 85(3) and 86 of the Treaty of Rome, where no rules on the coordination of the use of those channels have been adopted?

2. Is such conduct compatible with the Treaty of Rome and the competition rules contained therein?"

The Commission makes the preliminary point that the orders for reference are particularly laconic and give sparse details of the elements of fact and law such as to make it possible to identify the purpose of the questions referred and thus to comprehend their meaning and scope.

8 Although the Court has been provided with some information by the file submitted by the national court and the written observations, as is clear from the Report for the Hearing, and by the oral observations of the parties at the hearing, that information is fragmentary and does not enable the Court, in the absence of adequate knowledge of the facts underlying the main proceedings, to interpret the Community competition rules in the light of the situation at issue, as it has been requested to do by the national judge.

Costs

10 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national judge, the decision on costs is a matter for that judge.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Vice Pretore of Frascati, by orders of 4 September 1990, hereby rules:

There is no need to give a decision on the questions submitted.