The European Court of Human Rights has ruled that Italy’s framework for allocating digital terrestrial television frequencies breached freedom of expression rights, finding that the legal and regulatory safeguards in place were inadequate and undermined the independence of the country’s communications regulator.
In a judgment in Europa Way S.r.l. v Italy, the Court held that there had been a violation of Article 10 of the European Convention on Human Rights after a 2011 AGCOM-run tender for free allocation of DTT frequencies to new entrants and smaller operators was first suspended by ministerial decree, then annulled by a 2012 law and later replaced by a paid selection procedure.
Europa Way, a Rome-based broadcaster, took part in the original tender and unsuccessfully challenged the suspension and annulment in the Italian courts, arguing that the government had unlawfully interfered with AGCOM’s regulatory powers. In 2018, following a reference to the Court of Justice of the European Union, the Italian Council of State refused to apply the 2012 law on the grounds it was incompatible with EU law and unlawfully encroached on AGCOM’s competence – but AGCOM nonetheless confirmed the annulment of the original tender, stating it was bound by the same law.
The Strasbourg Court found that Europa Way could reasonably expect its application to be assessed under the rules in force when the tender was launched, and that the subsequent legislative and administrative changes “clearly undermined” AGCOM’s independence. It concluded that the suspension and cancellation of the tender were not “provided for by law” in the sense required by Article 10, and that the overall framework for allocating DTT frequencies in Italy did not offer sufficient guarantees against arbitrariness in a democratic society.
Italy has been ordered to pay the company €113,828 in pecuniary damage, €12,000 in non-pecuniary damage and €35,000 in costs and expenses. The Chamber judgment is not yet final and may still be referred to the Grand Chamber of the Court.
