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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> T - 2 (Authorisation of electronic communications networks and services – Harmonised radio spectrum - Judgment) [2025] EUECJ C-562/23 (27 February 2025) URL: http://www.bailii.org/eu/cases/EUECJ/2025/C56223.html Cite as: ECLI:EU:C:2025:126, [2025] EUECJ C-562/23, EU:C:2025:126 |
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Provisional text
JUDGMENT OF THE COURT (Sixth Chamber)
27 February 2025 (*)
( Reference for a preliminary ruling – Authorisation of electronic communications networks and services – Harmonised radio spectrum – Individual rights of use for a limited period – Extension of those rights – Directive 2002/20/EC – Article 5(2) – Directive 2002/20, as amended by Directive 2009/140/EC – Article 5(2) – European Electronic Communications Code – Directive (EU) 2018/1972 – Article 49(1) and (2) – Temporal applicability )
In Case C‑562/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Upravno sodišče (Administrative Court, Slovenia), made by decision of 24 August 2023, received at the Court on 11 September 2023, in the proceedings
T ‑ 2 družba za ustvarjanje, razvoj in trženje elektronskih komunikacij in opreme d.o.o.
v
Agencija za komunikacijska omrežja in storitve Republike Slovenije,
THE COURT (Sixth Chamber),
composed of T. von Danwitz (Rapporteur), Vice-President of the Court, acting as President of the Sixth Chamber, A. Kumin and I. Ziemele, Judges,
Advocate General: P. Pikamäe,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– the Slovenian Government, by V. Klemenc, acting as Agent,
– the Spanish Government, by L. Aguilera Ruiz, acting as Agent,
– the Polish Government, by B. Majczyna, acting as Agent,
– the European Commission, by O. Gariazzo, L. Malferrari and B. Rous Demiri, 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 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), the fourth subparagraph of Article 5(2) of Directive 2002/20, 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) (‘Directive 2002/20, as amended’), and Article 49(1) and (2) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).
2 The request has been made in proceedings between T - 2 družba za ustvarjanje, razvoj in trženje elektronskih komunikacij in opreme d.o.o. (‘T-2’), a company established under Slovenian law, and the Agencija za komunikacijska omrežja in storitve Republike Slovenije (Communications Services and Networks Agency of the Republic of Slovenia; ‘the Agency’) concerning the Agency’s refusal to extend the validity of the decision by which it granted T-2 individual rights of use for radio spectrum.
Legal context
European Union law
Directive 2002/20
3 Article 5(2) of Directive 2002/20, entitled ‘Rights of use for radio frequencies and numbers’, provided, in the second subparagraph thereof:
‘… Where Member States grant rights of use for a limited period of time, the duration shall be appropriate for the service concerned.’
4 Article 5(2) of Directive 2002/20, as amended, entitled ‘Rights of use for radio frequencies and numbers’, provided, in the fourth subparagraph thereof:
‘Where Member States grant rights of use for a limited period of time, the duration shall be appropriate for the service concerned in view of the objective pursued taking due account of the need to allow for an appropriate period for investment amortisation.’
5 Directive 2002/20 was repealed and replaced by Directive 2018/1972.
Directive 2018/1972
6 Recitals 1, 131 and 323 of Directive 2018/1972 state:
‘(1) Directives … 2002/20/EC … have been substantially amended. Since further amendments are to be made, those Directives should be recast in the interests of clarity.
…
(131) Effective management of radio spectrum can be ensured by facilitating the continued efficient use of radio spectrum that has already been assigned. In order to ensure legal certainty to holders of the rights, the possibility of renewal of rights of use should be considered within an appropriate time-span prior to the expiry of the rights concerned, for example, where rights have been assigned for 15 years or more, at least two years before expiry of those rights, unless the possibility of renewal was explicitly excluded at the time of assignment of the rights. …
…
(323) Since the objective of this Directive, namely achieving a harmonised and simplified framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, of the conditions for the authorisation of networks and services, of radio spectrum use … cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at [EU] level, the [European] Union may adopt measures …’
7 Article 1 of Directive 2018/1972, entitled ‘Subject matter, scope and aims’, provides, in paragraph 1 thereof:
‘This Directive establishes a harmonised framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, and certain aspects of terminal equipment. It lays down tasks of national regulatory authorities and, where applicable, of other competent authorities, and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Union.’
8 Under Article 2 of that directive, headed ‘Definitions’:
‘For the purposes of this Directive, the following definitions apply:
…
(25) “harmonised radio spectrum” means radio spectrum for which harmonised conditions relating to its availability and efficient use have been established by way of technical implementing measures in accordance with Article 4 of Decision No 676/2002/EC [of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ 2002 L 108, p.1)];
…’
9 Article 47 of Directive 2018/1972, headed ‘Conditions attached to individual rights of use for radio spectrum’, states, in paragraph 1 thereof:
‘Competent authorities shall attach conditions to individual rights of use for radio spectrum in accordance with Article 13(1) in such a way as to ensure optimal and the most effective and efficient use of radio spectrum. They shall, before the assignment or renewal of such rights, clearly establish any such conditions, including the level of use required and the possibility to fulfil that requirement through trading or leasing, in order to ensure the implementation of those conditions in accordance with Article 30. Conditions attached to renewals of right of use for radio spectrum shall not provide undue advantages to existing holders of those rights.
…
Competent authorities shall, in a timely and transparent manner, consult and inform interested parties regarding conditions attached to individual rights of use before their imposition. They shall determine in advance and inform interested parties, in a transparent manner, of the criteria for the assessment of the fulfilment of those conditions.’
10 Article 49 of that directive, entitled ‘Duration of rights’, provides in paragraphs 1 and 2 thereof:
‘1. Where Member States authorise the use of radio spectrum through individual rights of use for a limited period, they shall ensure that the right of use is granted for a period that is appropriate in light of the objectives pursued in accordance with Article 55(2), taking due account of the need to ensure competition, as well as, in particular, effective and efficient use of radio spectrum, and to promote innovation and efficient investments, including by allowing for an appropriate period for investment amortisation.
2. Where Member States grant individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications services (“wireless broadband services”) for a limited period, they shall ensure regulatory predictability for the holders of the rights over a period of at least 20 years regarding conditions for investment in infrastructure which relies on the use of such radio spectrum, taking account of the requirements referred to in paragraph 1 of this Article. This Article is subject, where relevant, to any modification of the conditions attached to those rights of use in accordance with Article 18.
To that end, Member States shall ensure that such rights are valid for a duration of at least 15 years and include, where necessary to comply with the first subparagraph, an adequate extension thereof, under the conditions laid down in this paragraph.
Member States shall make available the general criteria for an extension of the duration of rights of use, in a transparent manner, to all interested parties in advance of granting rights of use, as part of the conditions laid down under Article 55(3) and (6). Such general criteria shall relate to:
(a) the need to ensure the effective and efficient use of the radio spectrum concerned, the objectives pursued in points (a) and (b) of Article 45(2), or the need to fulfil general interest objectives related to ensuring safety of life, public order, public security or defence; and
(b) the need to ensure undistorted competition.
At the latest two years before the expiry of the initial duration of an individual right of use, the competent authority shall conduct an objective and forward-looking assessment of the general criteria laid down for extension of the duration of that right of use in light of point (c) of Article 45(2). Provided that the competent authority has not initiated enforcement action for non-compliance with the conditions of the rights of use pursuant to Article 30, it shall grant the extension of the duration of the right of use unless it concludes that such an extension would not comply with the general criteria laid down in point (a) or (b) of the third subparagraph of this paragraph.
On the basis of that assessment, the competent authority shall notify the holder of the right as to whether the extension of the duration of the right of use is to be granted.
If such extension is not to be granted, the competent authority shall apply Article 48 for granting rights of use for that specific radio spectrum band.
Any measure under this paragraph shall be proportionate, non-discriminatory, transparent and reasoned.
By way of derogation from Article 23, interested parties shall have the opportunity to comment on any draft measure pursuant to the third and the fourth subparagraphs of this paragraph for a period of at least three months.
This paragraph is without prejudice to the application of Articles 19 [regarding restriction and withdrawal of rights] and 30 [regarding compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources and compliance with specific obligations].
When establishing fees for rights of use, Member States shall take account of the mechanism provided for under this paragraph.’
11 Article 124 of Directive 2018/1972, headed ‘Transposition’, provides, in paragraph 1 thereof:
‘Member States shall adopt and publish, by 21 December 2020, the laws, regulations and administrative provisions necessary to comply with this Directive. …
Member States shall apply those measures from 21 December 2020.
When Member States adopt those measures, they shall contain a reference to this Directive …’
12 Article 125 of that directive, entitled ‘Repeal’, provides:
‘Directives … [2002/20] …, as listed in Annex XII, Part A, are repealed with effect from 21 December 2020 …
…’
13 Article 126 of Directive 2018/1972, entitled ‘Entry into force’, provides:
‘This Directive shall enter into force on the third day following that of its publication in the Official Journal of the European Union.’
Decision No 676/2002
14 Article 1 of Decision No 676/2002, entitled ‘Aim and scope’, provides, in paragraph 1 thereof:
‘The aim of this Decision is to establish a policy and legal framework in the Community in order to ensure the coordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of the radio spectrum necessary for the establishment and functioning of the internal market in Community policy areas such as electronic communications, transport and research and development (R & D).’
15 Article 2 of that decision, headed ‘Definition’, provides:
‘For the purposes of this Decision, “radio spectrum” includes radio waves in frequencies between 9 kHz and 3000 Ghz; radio waves are electromagnetic waves propagated in space without artificial guide.’
Slovenian law
16 Under Article 155 of the Ustava Republike Slovenije (Constitution of the Republic of Slovenia):
‘Laws, other rules and acts of a general nature cannot have retroactive effect. Only the law may provide that some of its provisions are to have retroactive effect, where the public interest so requires and provided that this does not affect acquired rights.’
17 Article 50(1) of the Zakon o elektronskih komunikacijah (Law on Electronic Communications) (Uradni list RS, No 43/04; ‘the Zekom’) provided:
‘The decision on the grant of radio frequencies shall be issued by the Agency for a fixed period, and more specifically for a maximum duration of 15 years, except for the grant of radio frequencies for aeronautical and maritime mobile radiotelephony services.’
18 Article 51 of the Zekom provided:
‘The validity of a decision on the grant of radio frequencies may be extended at the request of the rightholder if all of the conditions required at the time of the expiry of its validity for the use of those radio frequencies are satisfied.’
19 Under Article 53(1) of the Zakon o elektronskih komunikacijah (ZEKom-1) (Law on Electronic Communications (ZEKom-1), Uradni list RS, No 109/12; ‘the Zekom-1’), which replaced the Zekom and was applicable from 15 January 2013 to 9 November 2022:
‘The decision on the grant of radio frequencies shall be issued by the Agency for a fixed period, allowing an appropriate length of time, which is necessary for investment amortisation, and in any case for a maximum duration of 15 years, except for the grant of radio frequencies intended for aeronautical and maritime mobile radiotelephony services’.
20 Article 54(1) of the Zekom-1 provided:
‘The validity of the decision on the grant of radio frequencies, with the exception of decisions on the grant of radio frequencies for the purpose of ensuring the provision of public communications services to end users, may be extended at the request of the rightholder if all of the conditions required at the time of the expiry of its validity for the use of those radio frequencies are satisfied, and taking into account the purposes set out in Articles 194, 195, 196 and 197 of this Law.’
21 Under Article 240 of the Zekom-1, decisions issued on the basis of the Zekom could be amended, annulled or terminated under the conditions and in the manner laid down by the Zekom-1.
22 According to Article 307(1) of the Zakon o elektronskih komunikacijah (ZEKom-2) (Law on Electronic Communications (ZEKom-2), Uradni list RS, No 130/22; ‘the Zekom-2’), which repealed Zekom-1 and transposed Directive 2018/1972 into Slovenian law, applicable from 10 November 2022, decisions issued on the basis of the Zekom-1 and relating to time limits which had not yet expired when that law entered into force are to be amended, annulled or terminated under the conditions and in the manner provided for by the Zekom-2.
The dispute in the main proceedings and the questions referred for a preliminary ruling
23 By decision of 21 September 2006, the Agency granted individual rights of use for radio frequencies to T-2, for a duration of 15 years, with a view to ensuring public communications services intended for end users. The contract notice, on the basis of which that decision was adopted, did not provide for the possibility of extending that period.
24 On 20 August 2021, T-2 requested the extension of the validity of that decision for five years for part of those radio frequencies, relying, in particular, on Article 49 of Directive 2018/1972.
25 On 1 October 2021, the Agency rejected that request on the grounds that, first, under the Zekom-1, the validity of that decision may not be extended beyond 15 years, and second, that such an extension may not be granted on the basis of Article 49 of Directive 2018/1972 either.
26 As regards that provision, the Agency stated that the extension of the duration of individual rights of use for radio spectrum, in accordance with the second subparagraph of Article 49(2) of Directive 2018/1972, was laid down for the first time in that directive in order to ensure regulatory predictability over a period of 20 years and that, therefore, that purpose could not have been known in 2006, when the Agency granted rights of use to T-2.
27 T-2 brought an action against the decision to reject its request before the Upravno sodišče (Administrative Court, Slovenia).
28 T-2 argued before that court that the Zekom-1 is contrary to Directive 2018/1972 and that Article 49(2) thereof has direct effect. That provision applies to individual rights of use for radio frequencies granted before the adoption of that directive and which had not expired on the date of that directive’s entry into force. According to T-2, it follows that the Agency was required to conduct a renewal procedure for individual rights of use granted to T-2 during 2006, at the latest two years before the expiration of those rights, and that, from 21 December 2020, which is the time limit for transposing that directive, the Agency should have allowed that the individual rights of use granted for a period of less than 20 years enjoy a validity period of 20 years.
29 In its defence, the Agency replied that Article 49(2) of Directive 2018/1972 does not provide for an automatic extension of individual rights of use granted before the adoption of that directive but leaves the Member States a margin of discretion in that regard. In addition, the conditions for an extension of individual rights of use laid down in that article and, in particular, the necessity of ensuring regulatory predictability over a period of 20 years could not have been known, in 2006, when the rights of use at issue in the main proceedings were granted.
30 The referring court observes that Article 124 of that directive does not lay down transitional measures applicable to those rights and that Article 49(1) and (2) of that directive does not appear to apply retroactively, since that provision provides that the general criteria for extending the duration of individual rights of use must be known even before the grant of those rights.
31 As for national law, the referring court emphasises that the transitional measures laid down for the implementation of Directive 2018/1972, in the Zekom-2, adopted on 28 September 2022, apply from the date of their entry into force on 10 November 2022, solely to rights in force on that date, without the possibility of retroactivity.
32 The referring court adds that although, on the date of granting rights of use to T-2, an extension was possible in accordance with the Zekom, that was no longer the case when those rights expired, on 21 September 2021, since the Zekom-1 precludes any extension of such rights beyond a duration of 15 years.
33 In that context, the referring court is of the view that the outcome of the dispute in the main proceedings depends on the question of whether the individual rights of use for radio spectrum granted to T-2 before the entry into force of Directive 2018/1972 must be extended by five years pursuant to Article 49(1) and (2) of that directive and whether that provision has direct effect in the dispute in the main proceedings, since it had not been transposed into Slovenian law within the time limit provided for in that directive. If so, the referring court finds it necessary for the Court to state the general criteria for the extension of those rights laid down in that provision.
34 In addition, in the event that the Court finds that Article 49(1) and (2) of Directive 2018/1972 does not apply to the extension of individual rights of use granted before its entry into force, the referring court wonders whether it is necessary to apply directly Article 5(2) of Directive 2002/20 or Article 5(2) of Directive 2002/20, as amended, and, where appropriate, what the criteria are for assessing the reasonableness of the duration for granting individual rights of use and the obligation to extend those rights in accordance with those provisions.
35 In those circumstances, the Upravno sodišče (Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Are paragraphs (1) and (2) of Article 49 of [Directive 2018/1972] clear, unconditional and sufficiently precise to enable individuals to rely on them in proceedings before national administrative authorities and national courts?
(2) Must paragraphs (1) and (2) of Article 49 of [Directive 2018/1972] also be applied to the extension of those individual rights of use for the RFS [(radio frequency spectrum)] which were granted prior to the entry into force of [that directive], and what are the general criteria which apply in such a case in order to determine whether an individual right must be extended?
(3) If the answer to Question 2 is in the negative, [the Upravno sodišče (Administrative Court) asks,] for the purposes of assessing an appropriate duration of the individual rights of use for the RFS which were granted during the validity of [Directive 2002/20] and therefore in relation to the possibility of an extension of those rights, is it necessary to apply the provision set out in Article 5(2) of [that directive] or the fourth subparagraph of Article 5(2) of [Directive 2002/20, as amended], and are those provisions sufficiently clear, unconditional and precise to permit their use as a basis for assessing the appropriateness of the duration of an individual right of use for the RFS?
(4) If the answer to Question 3 is in the affirmative, what criteria should be applied for the purpose of assessing the appropriateness of the duration of an individual right of use for the RFS or the obligation to extend that right?
(5) If the answer to Question 1, 2 or 3 is in the affirmative, is it necessary, for the purposes of the decision on the extension, to take account of the fact that the possibility of an extension beyond 15 years was expressly excluded by the national provisions in force at the time when that right of use expired?’
Consideration of the questions referred
The second question
36 By its second question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 49(1) and (2) of Directive 2018/1972 applies to the extension of the duration of individual rights of use for radio spectrum granted before the date of entry into force of that directive, but which expire after that date. If so, it requests the Court to state the conditions under which that duration is extended in accordance with that provision.
37 As a preliminary point, it is important to note that Directive 2018/1972 establishes the European Electronic Communications Code. It follows from recitals 1 and 323 and from Article 1(1) of that directive that it recasts several directives, including Directive 2002/20, and introduces a harmonised and simplified framework for the regulation of electronic communications networks, electronic communications services and associated facilities and services. That directive does not merely codify the acts of EU law that it amends or replaces, rather it modifies the existing regulatory framework before its adoption in order to take account of technological and market developments (see, to that effect, judgments of 14 March 2024, Commission v Poland (European Electronic Communications Code), C‑452/22, EU:C:2024:232, paragraph 84, and of 14 March 2024, Commission v Slovenia (European Electronic Communications Code), C‑457/22, EU:C:2024:237, paragraph 74).
38 Under Article 124(1) of Directive 2018/1972, Member States are to adopt and publish, by 21 December 2020 at the latest, the laws, regulations and administrative provisions necessary to comply with that directive and to apply those measures from that date. However, that directive does not include transitional measures concerning individual rights of use for radio spectrum existing on that date.
39 In those circumstances, it must be borne in mind that, according to settled case-law, a new legal rule applies from the date of entry into force of the act introducing it, and that, while it does not apply to legal situations that arose and became definitive before that date, it does apply immediately to the future effects of a situation which arose under the old law, as well as to new legal situations. It is otherwise, subject to the principle of the non-retroactivity of legal acts, only if the new rule is accompanied by special provisions which specifically lay down the conditions for its temporal application (judgment of 14 May 2020, Azienda Municipale Ambiente, C‑15/19, EU:C:2020:371, paragraph 57 and the case-law cited).
40 In addition, procedural rules are generally taken to apply from the date on which they enter into force, as opposed to substantive rules, which are usually interpreted as applying to situations existing before their entry into force only in so far as it follows clearly from their terms, their objectives or their general scheme that such an effect must be given to them (judgment of 15 June 2021, Facebook Ireland and Others, C‑645/19, EU:C:2021:483, paragraph 100 and the case-law cited).
41 In order to determine whether Article 49(1) and (2) of Directive 2018/1972 applies to the extension of individual rights of use such as those granted to T-2, it must be recalled, as a preliminary point, that on the date those rights were granted, namely 21 September 2006, Article 5(2) of Directive 2002/20 provided that ‘where Member States grant rights of use for a limited period of time, the duration shall be appropriate for the service concerned’. In the version amended by Directive 2009/140, Article 5(2) of Directive 2002/20 repeated that formulation and added that the adaptation of the duration for the service concerned is carried out ‘in view of the objective pursued taking due account of the need to allow for an appropriate period for investment amortisation’. Accordingly, those rules do not fix a precise duration for individual rights of use or conditions regarding the extension of that duration.
42 As for Article 49(1) and (2) of Directive 2018/1972, it is important to note that that article concerns, respectively, individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002 in order to enable its use for wireless broadband electronic communications services. In the present case, it is apparent from the file before the Court that, subject to verification by the referring court, the rights at issue in the case in the main proceedings fall solely within the scope of that paragraph 2.
43 That provision provides, in the first subparagraph thereof, that the Member States shall ensure ‘regulatory predictability for the holders of the rights over a period of at least 20 years’ regarding conditions for investment in infrastructure, taking account of the requirements referred to in paragraph 1 of that article, and, in the second subparagraph thereof, that, ‘to that end, Member States shall ensure that such rights are valid for a duration of at least 15 years and include, where necessary to comply with the first subparagraph, an adequate extension thereof, under the conditions laid down in this paragraph.’
44 Accordingly, that provision constitutes a substantive rule, which, in accordance with the case-law referred to in paragraph 39 above, applies to legal situations that arose and became definitive before the entry into force of that provision only in so far as it clearly follows from its terms, its objectives or its general scheme that such an effect must be attributed to it.
45 In the first place, the grant of the rights of use to T-2 for a duration of 15 years constitutes a legal situation that arose and became definitive, bearing in mind, first, that no extension beyond that duration was provided for by Directive 2002/20 or by Directive 2002/20, as amended, which were applicable before the entry into force of Directive 2018/1972. In addition, it is clear from the documents available to the Court that the Agency invited tenders for the rights at issue in the main proceedings on 17 December 2020 to be granted, before the expiry of the time limit for transposition of Directive 2018/1972, which led to the grant of those rights to an undertaking other than T-2. Moreover, those documents do not show that T-2 acquired rights to an extension or received assurances of such nature as to give it a legitimate expectation in that regard, which is a matter for the referring court to determine.
46 In the second place, it follows from the wording of Article 49(2) of Directive 2018/1972 that that provision is not intended to apply retroactively. The third subparagraph thereof provides that the general criteria for the extension of the duration of individual rights of use must be made available to the parties concerned ‘in advance of granting rights of use’. In addition, the fourth subparagraph thereof provides that ‘at the latest two years before the expiry of the initial duration of an individual right of use, the competent authority shall conduct an objective forward-looking assessment’ of those criteria and adds that the extension of the duration of an individual right of use is subject to compliance with those criteria.
47 The wording of Article 47(1) of that directive, regarding the conditions attached to individual rights of use for radio spectrum, supports the foregoing finding. That provision lays down, in the first subparagraph thereof, that the competent authorities clearly establish all of those conditions ‘before’ the assignment or renewal of those rights and, in the third subparagraph thereof, that the competent authorities consult and inform, ‘in a timely and transparent manner’, the parties concerned regarding the conditions attached to those rights ‘before their imposition’.
48 In the absence of clear indications, the purpose of the duration of rights of use laid down in the first subparagraph of Article 49(2) of Directive 2018/1972, to ensure regulatory predictability over a period of 20 years from the granting of individual rights of use, taking account of investments in infrastructure to be made, is not capable of supporting a retroactive effect, especially since Article 5(2) of Directive 2002/20, as amended, which was applicable when that directive entered into force, refers only to ‘the need to allow for an appropriate period for investment amortisation’.
49 Lastly, it is necessary to add that Directive 2018/1972 refers to time limits which can be difficult to respect for a renewal procedure applicable, as in the case in the main proceedings, to rights already granted before the entry into force of that directive. Recital 131 of that directive states that the possibility of renewal of rights of use should be considered within an appropriate time-span prior to the expiry of the rights concerned, for example, where rights have been assigned for 15 years or more, at least 2 years before expiry of those rights, unless the possibility of renewal was explicitly excluded at the time of assignment of the rights.
50 Consequently, as Article 49(2) of Directive 2018/1972 is not intended to apply ratione temporis to a legal situation, such as that at issue in the main proceedings, which arose and became definitive before the entry into force of that directive, the provisions of paragraph 1 of Article 49, to which paragraph 2 refers, are not intended to apply to that legal situation either.
51 Therefore, there is no need to examine the conditions under which the duration of individual rights of use, such as those granted to T-2 before the entry into force of that directive, are capable of being extended in accordance with those provisions.
52 In the light of the foregoing considerations, the answer to the second question is that Article 49(1) and (2) of Directive 2018/1972 does not apply to the extension of the duration of individual rights of use for radio spectrum falling under that paragraph 2 and granted before the date of the entry into force of that directive, but whose expiry occurs after that date.
The first and third to fifth questions
53 By its first and third to fifth questions, the referring court asks the Court, in essence, to clarify, in the event that the second question is answered in the affirmative, whether Article 49(1) and (2) of Directive 2018/1972 has direct effect. In the event that the second question is answered in the negative, the referring court asks the Court whether to apply directly, in the case in the main proceedings, Article 5(2) of Directive 2002/20 or Article 5(2) of Directive 2002/20, as amended, in order to assess the appropriateness of the duration for granting individual rights for radio spectrum and, where appropriate, the criteria for that assessment. The referring court also requests the Court to state, in either case, whether the fact that the national legislation applicable when the rights expired precluded any extension beyond 15 years must be taken into account.
54 In the light of the answer given to the second question, there is no need to determine whether Article 49(1) and (2) of Directive 2018/1972 has direct effect.
55 The question of whether Article 5(2) of Directive 2002/20 or Article 5(2) of Directive 2002/20, as amended, can apply directly to the dispute in the main proceedings appears to be irrelevant since it appears to be common ground that those provisions were correctly transposed into Slovenian law.
56 Consequently, it is not necessary to state whether the fact that the national legislation applicable when the rights expired precluded any extension beyond 15 years is relevant for the analysis of those questions.
Costs
57 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 (Sixth Chamber) hereby rules:
Article 49(1) and (2) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code does not apply to the extension of the duration of individual rights of use for radio spectrum falling under that paragraph 2 and granted before the date of entry into force of that directive, but which expire after that date.
[Signatures]
* Language of the case: Slovenian.
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