Teutas - Diritto & Tecnologia

Lately, interest in the debate on the regulation of the television sector seems to have decreased in Italy. On the contrary, the European Community, at its different institutional levels, shows increasing attention to this topic, with regard to the Italian television system and, in general, to the European discipline of the" audiovisual media services".
Just last July, the European Commission opened a procedure of infringement (article 226 of the EC Treaty ) noting that Italian laws do not yet comply with the European "regulation" on competition in electronic communications. In fact, the Italian legislation, in regulating the transition from analogue to digital broadcasting for terrestrial television (Law 66 of 2001 and Law 112 of 2004), favours the existing operators. Italy therefore enforces rules that do not comply with laws of the European Community. After the first formal notice from the Commission dating back to 2006, the Italian government responded by predicting that the problem would be solved by a timely approval of the law bill 1825 (Provisions for the regulation of broadcasting during the transition to digital technology ). Because the Italian Parliament has not yet approved this bill, in July 2007 the European Commission has asked the Italian Republic to comply within the following two months.
It is expected, therefore, that this issue will be resolved shortly, by establishing new provisions.

An even more pressing issue before the Court of Justice concerns the request by the Italian State Council to rule on the interpretation of the relevant European community "law" on the longstanding dispute on terrestrial TV spectrum frequencies, whose use was denied to the Italian broadcaster Europa7 (the legitimate licensee) in favour of the broadcaster Retequattro (law n. 112 of 2004: Retequattro was allowed temporarily to continue its national analogical broadcasting activities).


Regarding this issue, on September 12 , 2007 the conclusions on the case of the Advocate General at the Court of Justice Poiares Maduro were published. While simplifying the questions from the Council of State, the Advocate general has interpreted the Community law (especially of Article 49 Treaty of the European Community) in favour of Europe 7. The Advocate General has concluded that if, for reasons of public interest, it is necessary to restrict the total number of operators of a specific market (such as analogue terrestrial television), the selection procedure must exclude arbitrary discrimination. National courts, which have the obligation to ensure the effective application of Community law, "must closely scrutinise the reasons given by a Member State for seeking to delay the allocation of frequencies to an operator who has thus obtained national broadcasting rights, and, if necessary, order appropriate remedies to ensure that those rights do not remain illusory."

This second question too is still, literally, sub judice as the Court of Justice has to rule on it.

Waiting for the final ruling of the Court, Paolo Gentiloni, the Italian Minister for Communications opened a procedure to re-allocate the use of spectrum frequencies, in order to partly set the situation.

Furthermore, on Tuesday, December 11th 2007, the European Commission sent Italy a letter of formal notice for violating EU advertising rules under the Television without Frontiers Directive.

The European Commission, according to the official press release, says that "Italian broadcasters do not comply with the Directive's quantitative advertising rules, in particular with the 12 minute per hour limit for advertising, the rule on 20 minute minimum intervals between advertising breaks and the rule on inserting advertising in films. Italian legislation does not include teleshopping spots in the hourly limit for advertising – which leads to more advertising than allowed by the Directive – and also does not respect the minimum duration of 15 minutes allowed by the Directive for "teleshopping windows" (i.e. teleshopping programs on a generalist TV channel). Moreover, in contrast to the Directive, self-promotion – including advertising by broadcasters for their own programs or products – is not considered to be advertising under Italian law. This results in programs like news being unduly interrupted, and longer advertising breaks, in violation of the Directive's rules. In addition, basic advertising rules of the Directive, like those ensuring respect for human dignity and non-discrimination, do not apply to self-promotional messages broadcast on Italian TV."

This issue has special consequences on the advertisement market itself, which in Italy is dominated by a few broadcasting operators.