The judgment under comment concerns a public tender launched in 2011 for the allocation of digital terrestrial frequencies during Italy’s transition from analogue to digital television. According to the rules established by AGCOM, the Italian Communications Authority, the original procedure provided for the free allocation of certain frequencies to the applicant company.

Subsequently, a ministerial decree suspended the tender, and a 2012 law definitively annulled it, replacing it with a new selection system requiring payment by the competitors. This legislative change raised not only issues of competence – since it affected AGCOM’s regulatory powers – but also questions concerning the protection of freedom of expression and pluralism in the media sector.

The European Court of Human Rights took the opportunity to reaffirm the crucial role of independent regulatory authorities in safeguarding pluralism and freedom of information. It also stressed the importance of maintaining their independence from governments and legislatures, so that they can perform their functions without political interference.

In this case, the Court recalled that Italian judges had already refused to apply the 2012 law, considering it incompatible with European Union law and potentially detrimental to AGCOM’s regulatory prerogatives. This revealed a legal framework in which domestic law did not allow either the suspension of the tender through a ministerial decree or its annulment through subsequent legislative measures.

Considering these elements, the ECtHR concluded that the Italian legislative and administrative framework did not provide adequate safeguards against arbitrariness in the allocation of digital frequencies. This lack of protection, according to the Strasbourg judges, resulted in a violation of the applicant company’s freedom of expression under Article 10 of the European Convention on Human Rights, thereby undermining the principle of pluralism that must guide access to the media.

 

(Comment by Bruno Pitingolo)