Provisional text
JUDGMENT OF THE COURT (Third Chamber)
16 July 2026 (*)
( Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/21/EC – Article 9 – Radio spectrum management for electronic communications services – Principle of service neutrality – Article 9a – Review of restrictions on existing rights to use radio spectrum – A national measure requiring a holder of rights to use radio frequencies to use those frequencies in accordance with the provisions of the national frequency allocation plan and not permitting the pursuit of different activities – A national measure requiring the use of those radio frequencies exclusively for digital terrestrial television broadcasting services )
In Case C‑401/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 16 June 2025, received at the Court on 17 June 2025, in the proceedings
Elettronica Industriale SpA
v
Ministero delle Imprese e del Made in Italy,
in the presence of:
Autorità per le Garanzie nelle Comunicazioni (AGCOM),
THE COURT (Third Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Elettronica Industriale SpA, by M. Molino, C. Previti and G. Rossi, avvocati,
– the Italian Government, by S. Fiorentino, acting as Agent, and by G. Aiello and A. De Curtis, avvocati dello Stato,
– the Czech Government, by L. Halajová, J. Očková and J. Vláčil, acting as Agents,
– the European Commission, by G. Conte and O. Gariazzo, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Articles 9 and 9a 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 (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Framework Directive’), and the provisions of the FEU Treaty relating to the freedom to provide services.
2 The request has been made in proceedings between Elettronica Industriale SpA and the Ministero delle Imprese e del Made in Italy (Ministry of Enterprise and Made in Italy, Italy) (‘the Ministry’) concerning the latter’s refusal to grant the company’s request to review the restriction on its rights to use radio frequencies for digital terrestrial television (DTT) services.
The legal framework
European Union law
The Framework Directive
3 Recitals 18 and 19 of the Framework Directive stated:
‘(18) The requirement for Member States to ensure that national regulatory authorities take the utmost account of the desirability of making regulation technologically neutral, that is to say that it neither imposes nor discriminates in favour of the use of a particular type of technology, does not preclude the taking of proportionate steps to promote certain specific services where this is justified, for example digital television as a means for increasing spectrum efficiency.
(19) Radio frequencies are an essential input for radio-based electronic communications services and, in so far as they relate to such services, should therefore be allocated and assigned by national regulatory authorities according to a set of harmonised objectives and principles governing their action as well as to objective, transparent and non-discriminatory criteria, taking into account the democratic, social, linguistic and cultural interests related to the use of frequency. It is important that the allocation and assignment of radio frequencies is managed as efficiently as possible. …’
4 Article 2(q) of that directive defined the term ‘spectrum allocation’ as ‘the designation of a given frequency band for use by one or more types of radio communications services, where appropriate, under specified conditions’.
5 Article 4(1) of that directive provided:
‘Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism.
…’
6 According to Article 8 of that directive, Member States were required to ensure, in carrying out the regulatory tasks specified in the Framework Directive and in the specific directives, that national regulatory authorities took all reasonable measures aimed, in particular, at promoting competition in the provision of electronic communications networks and services, contributing to the development of the internal market and promoting the interests of EU citizens.
7 Article 9 of the Framework Directive provided:
‘1. Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory in accordance with Articles 8 and 8a. They shall ensure that spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria.
In applying this Article, Member States shall respect relevant international agreements, including the [International Telecommunications Union (ITU)] Radio Regulations, and may take public policy considerations into account.
…
3. Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of technology used for electronic communications services may be used in the radio frequency bands, declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Community law.
Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where this is necessary to:
(a) avoid harmful interference;
(b) protect public health against electromagnetic fields;
(c) ensure technical quality of service;
(d) ensure maximisation of radio frequency sharing;
(e) safeguard efficient use of spectrum; or
(f) ensure the fulfilment of a general interest objective in accordance with paragraph 4.
4. Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of electronic communications services may be provided in the radio frequency bands, declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Community law. Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations.
Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as defined by Member States in accordance with Community law, such as, and not limited to:
(a) safety of life;
(b) the promotion of social, regional or territorial cohesion;
(c) the avoidance of inefficient use of radio frequencies; or
(d) the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services.
A measure which prohibits the provision of any other electronic communications service in a specific band may only be provided for where justified by the need to protect safety of life services. Member States may, exceptionally, also extend such a measure in order to fulfil other general interest objectives as defined by Member States in accordance with Community law.
5. Member States shall regularly review the necessity of the restrictions referred to in paragraphs 3 and 4, and shall make the results of these reviews public.
6. Paragraphs 3 and 4 shall apply to spectrum allocated to be used for electronic communications services, general authorisations issued and individual rights of use of radio frequencies granted after 25 May 2011.
Spectrum allocations, general authorisations and individual rights of use which existed by 25 May 2011 shall be subject to Article 9a.
7. Without prejudice to the provisions of the Specific Directives and taking into account the relevant national circumstances, Member States may lay down rules in order to prevent spectrum hoarding, in particular by setting out strict deadlines for the effective exploitation of the rights of use by the holder of the rights and by applying penalties, including financial penalties or the withdrawal of the rights of use in case of non-compliance with the deadlines. These rules shall be established and applied in a proportionate, non-discriminatory and transparent manner.’
8 Article 9a of that directive provided:
‘1. For a period of five years starting from 25 May 2011, Member States may allow holders of rights to use radio frequencies which were granted before that date and which will remain valid for a period of not less that five years after that date, to submit an application to the competent national authority for a reassessment of the restrictions on their rights in accordance with Article 9(3) and (4).
Before adopting its decision, the competent national authority shall notify the right holder of its reassessment of the restrictions, indicating the extent of the right after reassessment, and shall allow him a reasonable time limit to withdraw his application.
If the right holder withdraws his application, the right shall remain unchanged until its expiry or until the end of the five-year period, whichever is the earlier date.
2. After the five-year period referred to in paragraph 1, Member States shall take all appropriate measures to ensure that Article 9(3) and (4) apply to all remaining general authorisations or individual rights of use and spectrum allocations used for electronic communications services which existed on 25 May 2011.
3. In applying this Article, Member States shall take appropriate measures to promote fair competition.
4. Measures adopted in applying this Article do not constitute the granting of new rights of use and therefore are not subject to the relevant provisions of Article 5(2) of 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 (Authorisation Directive) (OJ 2002 L 108, p. 21)].’
Directive 2009/140
9 Recitals 34 to 36, 38 and 40 of Directive 2009/140 stated:
‘(34) Flexibility in spectrum management and access to spectrum should be increased through technology and service-neutral authorisations to allow spectrum users to choose the best technologies and services to apply in frequency bands declared available for electronic communications services in the relevant national frequency allocation plans in accordance with Community law (the “principles of technology and service neutrality”). The administrative determination of technologies and services should apply when general interest objectives are at stake and should be clearly justified and subject to regular periodic review.
(35) Restrictions on the principle of technology neutrality should be appropriate and justified by the need to avoid harmful interference, for example by imposing emission masks and power levels, to ensure the protection of public health by limiting public exposure to electromagnetic fields, to ensure the proper functioning of services through an adequate level of technical quality of service, while not necessarily precluding the possibility of using more than one service in the same frequency band, to ensure proper sharing of spectrum, in particular where its use is only subject to general authorisations, to safeguard efficient use of spectrum, or to fulfil a general interest objective in conformity with Community law.
(36) Spectrum users should also be able to freely choose the services they wish to offer over the spectrum subject to transitional measures to deal with previously acquired rights. On the other hand, measures should be allowed which require the provision of a specific service to meet clearly defined general interest objectives such as safety of life, the need to promote social, regional and territorial cohesion, or the avoidance of the inefficient use of spectrum to be permitted where necessary and proportionate. Those objectives should include the promotion of cultural and linguistic diversity and media pluralism as defined by Member States in conformity with Community law. Except where necessary to protect safety of life or, exceptionally, to fulfil other general interest objectives as defined by Member States in accordance with Community law, exceptions should not result in certain services having exclusive use, but should rather grant them priority so that, in so far as possible, other services or technologies may coexist in the same band.
…
(38) As the allocation of spectrum to specific technologies or services is an exception to the principles of technology and service neutrality and reduces the freedom to choose the service provided or technology used, any proposal for such allocation should be transparent and subject to public consultation.
…
(40) The introduction of technology and service neutrality and trading for existing spectrum usage rights may require transitional rules, including measures to ensure fair competition, as the new system may entitle certain spectrum users to start competing with spectrum users having acquired their spectrum rights under more burdensome terms and conditions. Conversely, where rights have been granted as a derogation from the general rules or according to criteria other than those which are objective, transparent, proportionate and non-discriminatory with a view to achieving a general interest objective, the situation of the holders of such rights should not in an unjustified manner be to the detriment of their new competitors beyond what is necessary to achieve that general interest objective or another related general interest objective.’
Italian law
10 Article 14 of the decreto legislativo n. 259 – Codice delle comunicazioni elettroniche (Legislative Decree No 259 on the Electronic Communications Code), of 1 August 2003 (GURI No 214 of 15 September 2003, Ordinary Supplement No 150), in the version applicable to the main proceedings (‘the Electronic Communications Code’), provides, in paragraphs 4 to 8:
‘4. Unless otherwise provided for in paragraph 2, the [Ministry] and the [Autorità per le garanzie nelle comunicazioni (Communications Regulatory Authority, Italy) (“the Authority”)], each within the scope of their respective powers, shall ensure, in the national frequency allocation and assignment plan under EU law, that in the frequency bands declared available for electronic communications services, all types of electronic communications services may be provided. The Ministry and the Authority, within the scope of their respective powers, may, however, provide for proportionate and non-discriminatory restrictions in relation to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations and [European Conference of Postal and Telecommunications Administrations (“CEPT”)] guidelines.
5. The reasons provided for measures that require an electronic communications service to be provided in a specific frequency band available for electronic communications services must ensure the fulfilment of a general interest objective in conformity with European law, such as, and not limited to:
(a) the safeguarding of human life;
(b) the promotion of social, regional or territorial cohesion;
(c) the avoidance of inefficient use of radio frequencies; or
(d) the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services.
6. The Ministry and the Authority, within the scope of their respective powers, may prohibit the provision of any other electronic communications service in a specific frequency band only where this is justified by the need to protect services aimed at safeguarding human life. In exceptional cases, such a prohibition may be extended in order to fulfil other general interest objectives defined in accordance with EU law.
7. The Ministry and the Authority, within their respective powers, shall regularly review the necessity of the restrictions referred to in paragraphs 3 to 6 and shall make the results of that review public.
8. Paragraphs 3 and 4 shall apply to the radio spectrum allocated to electronic communications services and to general authorisations and individual rights of use of radio frequencies granted from the deadline referred to in the second sentence of Article 4(1) of decreto legge n. 34 [(Decree-Law No 34)] of 31 March 2011 [(GURI No 74, of 31 March 2011, p. 1)], converted with amendments by legge n. 75 [(Law No 75)] of 26 May 2011 [(GURI No 122, of 27 May 2011, p. 2)], as amended. Spectrum allocations, general authorisations and individual rights of use which existed at the end of the previous period shall be subject to Article 14bis.’
11 Article 14bis of the Electronic Communications Code provides:
‘1. Until 25 May 2016, the Ministry and the Authority, in accordance with their respective powers, may allow holders of rights to use radio frequencies granted before the deadline referred to in Article 14(8), and which will remain valid until that date, to submit an application for reassessment of the restrictions on their rights pursuant to Article 14(4) to (7). Before adopting a decision, the Ministry and the Authority shall, within the scope of their respective powers, notify the holder of the right of the reassessment of the restrictions, indicating the extent of the right after reassessment, and shall allow the applicant time to withdraw his or her application. If the holder of the right withdraws his or her application, the right shall remain unchanged until its expiry or until 25 May 2016, whichever is the earlier date.
2. After 25 May 2016, the Ministry and the Authority, in accordance with their respective powers, shall take all appropriate measures to ensure that Article 14(3) to (7) applies to all remaining general authorisations, individual rights of use and radio spectrum allocations used for electronic communications services.
3. In applying this Article, the Ministry and the Authority, in accordance with their respective powers, shall take appropriate measures to promote fair competition.
4. Measures adopted in applying this Article do not constitute the granting of new rights of use and therefore are not subject to the relevant provisions of Article 27 of this Code.’
The dispute in the main proceedings and the question referred for a preliminary ruling
12 Elettronica Industriale, an Italian telecommunications network operator, holds rights to use radio frequencies for DTT, corresponding to five nationwide networks (multiplexes), granted on 28 June 2012 by the Ministry.
13 On 24 May 2016, the company requested the Ministry to review the restriction on those rights of use, which had been granted solely for DTT broadcasting services. The purpose of that request was, in particular, to have the restriction lifted.
14 After the Ministry rejected that request, the company brought an action seeking the annulment of that rejection decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), arguing, in particular, that the rejection was vitiated by a breach of the principle of service neutrality, as set out in Article 9 of the Framework Directive.
15 That court dismissed that action on the grounds, inter alia, that both Article 9(4) of the Framework Directive and Article 14(4) of the Electronic Communications Code provide that the principle of service neutrality may be implemented only within the framework set out in the ‘national frequency allocation plans’. In that regard, pursuant to Article 14bis of that code, holders of rights of use granted before 30 June 2012 could request a review of the restrictions on their rights ‘in accordance with Article 14(4) to (7) [of that code]’ and, consequently, in accordance with the provisions of the national frequency allocation and assignment plan. According to that court, since the applicant had not challenged the plan in force at the time of its request for review of 24 May 2016, that plan could not form the subject matter of the dispute in the proceedings before it.
16 Elettronica Industriale lodged an appeal against that rejection decision before the Consiglio di Stato (Council of State, Italy), which is the referring court.
17 The latter states that Article 14 of the Electronic Communications Code, which incorporated the principles of technological neutrality and service neutrality into Italian law, provides that all technologies may be used for electronic communications services and that all types of electronic communications services may be provided, but only within the frequency bands declared available for electronic communications services by the national frequency allocation and assignment plan in accordance with EU law.
18 In that regard, it emphasises that the situation at issue in the main proceedings falls within the scope of the 2015 national frequency allocation and assignment plan, which reserved the 470-790 MHz frequency band for primary use by the broadcasting service.
19 In its request for review, Elettronica Industriale requested that its licence rights be used for broadband applications in the telecommunications sector, rather than for radio and television broadcasting.
20 In those circumstances, the referring court asks whether Articles 9 and 9a of the Framework Directive, together with the provisions of the FEU Treaty relating to the freedom to provide services, must be interpreted as precluding a national measure which requires a holder of rights to use radio frequencies to use the frequencies in question exclusively for DTT broadcasting services, such a restriction arising from the fact that the use of those frequencies is prescribed by the administrative act adopting the national frequency allocation plan.
21 The question that arises, therefore, is whether, for the purposes of a request for review within the meaning of Article 9a of the Framework Directive, concerning the pursuit of activities other than those referred to in the act by which that plan was adopted, that act is to be regarded as binding.
22 The referring court considers that such a request for review appears to be admissible only in respect of rights of use which the economic operator concerned already holds and which are provided for in the national frequency allocation plan. Thus, the rejection of that application, which seeks to use those rights for a different activity, could be justified on the sole ground that that plan contains restrictions on the use of those rights.
23 In that regard, that court considers that clarification is required as to the scope of Articles 9 and 9a of the Framework Directive in order to determine whether, during the review provided for in Article 9a, the competent national authorities may, in order to give effect to the principle of service neutrality, depart from the provisions of the national frequency allocation plan where the economic operator concerned has requested that the restriction on its rights to use frequencies be amended so as to enable it to carry out activities other than those for which it was initially authorised.
24 In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Do Articles 9 and 9a of [the Framework Directive] and the provisions of the [FEU Treaty] on freedom to provide services, preclude a national measure that requires the holder of rights to use radio frequencies to use those frequencies as provided for in the [National Frequency Allocation Plan (NFAP)] and does not allow activities other than those assigned to the operator at the time of the reassessment, and therefore do EU rules preclude a national measure requiring the holder of rights to use radio frequencies to use those frequencies solely for [DTT] broadcasting services, where the reasons for that measure provided by the national authorities relate solely to the alleged existence of obligations under radio spectrum planning measures?’
Consideration of the question referred for a preliminary ruling
Preliminary observations
25 By its question, the referring court seeks an interpretation of Articles 9 and 9a of the Framework Directive, as well as the provisions of the FEU Treaty relating to the freedom to provide services. In order to provide that court with an answer that will be useful in resolving the dispute before it, the following clarifications should be made.
26 First, as regards those provisions of the FEU Treaty, it should be noted that they do not, in principle, apply to a situation which is confined in all respects within a single Member State (judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47, and of 17 October 2024, FA.RO. di YK & C., C‑16/23, EU:C:2024:886, paragraph 38 and the case-law cited).
27 It is apparent from the order for reference that all the facts characterising the dispute in the main proceedings are confined to a single Member State, namely the Italian Republic, and that that order contains no indication suggesting that, despite its purely internal nature, the subject matter of that dispute has a connecting factor with the provisions of the FEU Treaty relating to the freedom to provide services which would make the interpretation of those provisions necessary for the resolution of that dispute (see, to that effect, judgment of 17 October 2024, FA.RO. di YK & C., C‑16/23, EU:C:2024:886, paragraph 41).
28 It follows that there is no need to answer the question referred, in so far as it concerns the interpretation of those provisions.
29 Secondly, as regards the interpretation of Articles 9 and 9a of the Framework Directive, it should be noted, on the one hand, that it is apparent from the order for reference that the applicant in the main proceedings relies on the principle of service neutrality, which is specifically referred to in Article 9(4) of that directive.
30 On the other hand, the first subparagraph of Article 9a(1) of that directive provides that, for a period of five years commencing on 25 May 2011, Member States may authorise holders of rights to use radio frequencies which were granted before that date and which will remain valid for at least five years after that date to submit to the competent national authority a request for a review of the restrictions on their rights laid down in accordance with Article 9(3) and (4) of that directive.
31 The possibility, provided for in Article 9a, to allow holders of rights to use radio frequencies to submit a request for review therefore applies only to holders of rights to use radio frequencies granted before 25 May 2011.
32 It is apparent from the order for reference that Elettronica Industriale was granted rights to use radio frequencies for DTT on 28 June 2012. It follows that Article 9a of the Framework Directive is not applicable in the context of the main proceedings.
33 By contrast, it should be noted that, on 28 June 2012, Article 9(4) of the Framework Directive was applicable. Article 9(6) of that directive provides, inter alia, that Article 9(4) applies to individual rights to use radio frequencies granted after 25 May 2011.
34 It follows that, from 25 May 2011, Member States were required, pursuant to Article 9(4) and (6), to ensure compliance with the principle of service neutrality and to ensure that restrictions on individual rights to use radio frequencies were based on objectives of general interest, proportionate and non-discriminatory.
35 In accordance with Article 4(1) of the Framework Directive, Member States are to ensure that effective mechanisms are in place at national level to enable any user or undertaking providing electronic communications networks and/or services, which is affected by a decision taken by a national regulatory authority, to appeal to a body independent of the parties concerned.
36 It follows that a telecommunications network operator, such as Elettronica Industriale, must be able to challenge a decision of the national regulatory authority, adopted on the basis of Article 9(4) of the Framework Directive, in order to obtain, as in the present case, the lifting of restrictions on its individual rights to use radio frequencies.
37 In those circumstances, although the main proceedings concern an application by Elettronica Industriale seeking a review of the restrictions on its rights to use radio frequencies for DTT, lodged by that company pursuant to Article 14bis of the Electronic Communications Code, which transposed Article 9a of the Framework Directive into Italian law, that fact does not prevent the Court from providing the referring court with an answer that will be of use to it to resolve the dispute before it.
38 In so far as Article 9a(1) of that directive refers to Article 9(4) thereof, an application seeking to challenge, on the basis of national law transposing Article 4(1) of the Framework Directive, a decision of the competent authority imposing restrictions on rights to use radio frequencies, adopted pursuant to that Article 9(4), would, in essence, have the same purpose as a request for review brought under the national law transposing Article 9a of the Framework Directive, which seeks to challenge those restrictions.
39 It follows from the foregoing considerations that the question referred must be answered in the light of Article 9(4) of the Framework Directive.
The substance
40 By its question, the referring court asks, in essence, whether Article 9(4) of the Framework Directive must be interpreted as precluding a national measure which requires a holder of individual rights to use radio frequencies to use those frequencies exclusively for the provision of DTT broadcasting services, on the sole basis of the obligations laid down in the national frequency allocation plan.
41 In order to answer that question, it is necessary to determine whether, and if so under what conditions, a national frequency allocation plan may impose restrictions on the rights to use frequencies in relation to electronic communications services to be provided using those frequencies. If so, it is necessary to determine whether, and under what conditions, such a plan must be binding, in the sense that it would necessarily entail the rejection of an application to lift those restrictions.
42 In the first place, in accordance with settled case-law, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12, and of 20 November 2025, Lolach, C‑327/24, EU:C:2025:901, paragraph 27).
43 First of all, according to the first sentence of the first subparagraph of Article 9(4) of the Framework Directive, Member States are to ensure that all types of electronic communications services may be provided ‘in the radio frequency bands, declared available for electronic communications services in their National Frequency Allocation Plan’ in accordance with EU law.
44 It is clear from the wording of that provision that it is within the framework of the national frequency allocation plan that Member States decide which frequency bands are available for the provision of electronic communications services. In that regard, Member States must, in principle, allow all types of electronic communications services to be provided using those frequency bands, which requires Member States to comply with the principle of service neutrality.
45 That being said, the second sentence of the first subparagraph of Article 9(4) of the Framework Directive allows Member States to provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement of the ITU Radio Regulations. That option constitutes a limitation on the principle of service neutrality, in that frequency bands allocated in accordance with the national frequency allocation plan may be used only for certain types of such services.
46 In those circumstances, it is clear from the wording of Article 9(4) of the Framework Directive that the reference to national frequency allocation plans, contained in the first subparagraph of that provision, indicates that the restrictions which that provision allows Member States to impose may be set out in those plans. Consequently, when Member States adopt those plans, they may specify not only the available frequency bands but also, where appropriate, restrictions on the use of those bands as regards the type of services that may be provided therein.
47 Next, the context of Article 9(4) of the Framework Directive confirms the literal interpretation set out in the paragraph above.
48 Article 9(6) of the Framework Directive provides that paragraphs 3 and 4 of Article 9 apply to spectrum allocated to be used for electronic communications services, as well as for general authorisations issued and individual rights of use of radio frequencies granted after 25 May 2011.
49 According to the definition of ‘spectrum allocation’ set out in Article 2(q) of that directive, that term refers to ‘the designation of a given frequency band for use by one or more types of radio communications services, where appropriate, under specified conditions’.
50 Given that the specific purpose of the national frequency allocation plan is to allocate spectrum, it follows that, by means of that plan, Member States may decide that a given frequency band may be used only for a particular type of radio communications service, thereby imposing a restriction on the principle of service neutrality.
51 Finally, as regards the objective of the Framework Directive, that consists, as is apparent from Article 8 thereof, in promoting competition in the provision of electronic communications networks and services, in contributing to the development of the internal market and in supporting the interests of EU citizens (see, to that effect, judgment of 11 September 2025, Cairo Network and Others, C‑764/23 to C‑766/23, EU:C:2025:691, paragraph 96).
52 Furthermore, in accordance with Article 9(1) of that directive, Member States must ensure the efficient management of radio frequencies for electronic communications services within their territory, in accordance, in particular, with Article 8 thereof. They must also ensure that the allocation of spectrum for the purposes of electronic communications services and the granting of general authorisations or individual rights to use such radio frequencies by the competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria.
53 In that regard, recital 18 of the Framework Directive states that, where justified, proportionate measures may be taken to promote certain specific services, such as digital television, with a view to increasing the efficiency of spectrum use. Recital 19 of that directive further specifies that the allocation and assignment of radio frequencies must be managed as efficiently as possible.
54 The objective relating to the need for the efficient management of radio frequencies, as required by Article 9(1) of the Framework Directive, may justify a Member State’s decision to impose, when allocating spectrum under the national frequency allocation plan, restrictions on the types of electronic communications services that may be provided.
55 It is thus apparent from an examination of the wording and context of Article 9(4) of the Framework Directive, as well as from the objective pursued by that directive, that, when Member States adopt their national frequency allocation plans, they may specify not only the available frequency bands but also, where appropriate, subject to compliance with the conditions laid down in that provision, restrictions on the use of those frequency bands as regards the type of services that may be provided therein.
56 In the light of that conclusion, it must be determined, in the second place, whether, and under what conditions, such a national frequency allocation plan must be binding, in the sense that an application for the lifting of restrictions on the individual rights to use radio frequencies granted to a telecommunications network operator, such as Elettronica Industriale, which limit the provision of electronic communications services, must be rejected on the ground that those restrictions were imposed by that plan.
57 Following the example of the Italian and Czech Governments and the European Commission, it should be noted that, in order to give full effect to the option available to Member States under Article 9(4) of the Framework Directive to require, as part of the national frequency allocation plan, that an electronic communications service be provided in a specific frequency band, that plan must necessarily be binding.
58 First, it should be noted that, as is clear from the second subparagraph of Article 9(4), where a national frequency allocation plan requires an electronic communications service to be provided in a specific frequency band available for electronic communications services, that requirement must be justified by the need to ensure the achievement of a general interest objective.
59 If a decision by a national regulatory authority granting individual rights to use frequencies were to run counter to that requirement, by permitting, for example, the provision of a type of service in a frequency band reserved by the relevant national frequency allocation plan for another type of service, there is a risk that the general interest objective justifying the measure adopted under that plan might not be achieved.
60 Secondly, in accordance with the second subparagraph of Article 9(1) of the Framework Directive, when applying that article, Member States are to comply with the relevant international agreements, including the ITU Radio Regulations. In that regard, the second sentence of the first subparagraph of Article 9(4) of that directive provides that Member States may impose proportionate and non-discriminatory restrictions on the types of electronic communications services to be provided, including, where necessary, in order to comply with a requirement laid down in those regulations.
61 A national frequency allocation plan that would implement a requirement arising from the relevant international agreements would therefore necessarily have to be binding.
62 Finally, as regards the conditions under which a Member State may, by means of a national frequency allocation plan, impose restrictions on the provision of electronic communications services in a specific available frequency band, it should be noted that such restrictions must comply with the conditions laid down in Article 9(4) of the Framework Directive, namely that they must be justified by the need to ensure the achievement of a general interest objective and must be proportionate and non-discriminatory.
63 In the present case, it is apparent from the order for reference that the 2015 national frequency allocation and assignment plan, which is applicant to the main proceedings, ‘reserved the 470-790 MHz frequency band for primary use by the broadcasting service’ and that the rejection of the request for review brought by Elettronica Industriale on the basis of Article 14bis of the Electronic Communications Code was justified, in essence, by reference to that plan and by the finding that that company had not challenged the administrative act by which the plan was adopted, even though it had had the opportunity to do so.
64 In that regard, while is for the referring court to determine whether the validity of the restriction on broadcasting services, provided for in that plan, may still be challenged by Elettronica Industriale in the main proceedings and, if so, whether that restriction satisfies the conditions laid down in Article 9(4) of the Framework Directive, the Court may, however, within the framework of the judicial cooperation established by Article 267 TFEU, on the basis of the information in the file, provide that court with information on the interpretation of EU law which may be useful to it in assessing the effects of a particular provision thereof (see, to that effect, judgment of 11 September 2025, Cairo Network and Others, C‑764/23 to C‑766/23, EU:C:2025:691, paragraph 102 and the case-law cited).
65 In that regard, first, it should be noted that, should the referring court find that the restriction in question is intended, as the Italian Government essentially contends, to ensure the efficient use of the spectrum or to prevent harmful interference with the provision of television broadcasting services by other operators, both domestic and in other Member States, it would be justified – provided that that court verifies the proportionality and non-discriminatory nature of that restriction – for holders of rights to use that spectrum, in the 470-790 MHz band, to be permitted to use those frequencies only for the services for which they are intended.
66 Secondly, as noted in paragraphs 35 and 36 of the present judgment, it follows from Article 4(1) of the Framework Directive that a telecommunications network operator, such as the applicant in the main proceedings, which holds individual rights to use frequencies and which wishes to use those rights within a frequency band to provide services other than those for which they are intended, for that frequency band, under the national frequency allocation plan, must have legal remedies enabling it to challenge the administrative act by which that plan was adopted.
67 However, it should be noted in that regard that, in principle, EU law does not require Member States to establish, before their national courts, legal remedies other than those provided for by national law, with a view to safeguarding the rights which individuals derive from EU law. The position is otherwise only if it is apparent from the overall scheme of the national legal system in question that no legal remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or again if the sole means whereby individuals can obtain access to a court is by breaking the law (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 143 and the case-law cited).
68 In the present case, there is nothing in the file before the Court to cast doubt on the existence of judicial remedies consistent with that case-law, by means of which Elettronica Industriale could have challenged the administrative act adopting the national frequency allocation and assignment plan. In that regard, it should be noted that, even if it were found that that company had the right to bring an action against that plan and failed to exercise that right within the prescribed time limit, or exercised it unsuccessfully, EU law does not require that company to be able to rely on the invalidity of the relevant provisions of that plan in the context of the main proceedings.
69 In the light of the foregoing considerations, the answer to the question referred is that Article 9(4) of the Framework Directive must be interpreted as not precluding a national measure which requires a holder of individual rights to use radio frequencies to use those frequencies exclusively for the provision of DTT broadcasting services, on the sole basis of the obligations laid down in the national frequency allocation plan.
Costs
70 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 9(4) 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 (Framework Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009,
must be interpreted as meaning that it does not preclude a national measure which requires a holder of individual rights to use radio frequencies to use those frequencies exclusively for the provision of digital terrestrial television broadcasting services, on the sole basis of the obligations laid down in the national frequency allocation plan.
Signatures