The Technology, Media and Telecommunications Review: Italy


In the year in review, the covid-19 pandemic continued to be a catalyst for needed changes across the technology, media, and telecoms (TMT) ecosystem, uncovering existing trends and revamping past enforcement strategies. In a context of accelerated digital transformation, many TMT businesses, as providers of key technology and critical infrastructure such as the cloud, data centres, and next generation networks, have proven vital in assisting the fight against the virus, ensuring business continuity. For Italy, this translates into a continued effort to advance the development of networks securing ultra-fast internet connections, along with shaping a regulatory framework where the challenges imposed by media and telecoms convergence, digitalisation, 5G roll-out and licencing and building of ultra-fast broadband networks can be successfully met.

  1. The year in review features several regulatory interventions in the TMT sector. However, three main developments can be identified:increased attention, both at the regulatory and enforcement level, to the role played by the online platforms in the use of services offered on the internet and the importance they are gaining in the digital economy. This new model is based on a multi-sided structure in which the platforms act as intermediaries and the data from businesses, citizens and consumers play a crucial role, both in relation to their direct exploitation (through online advertising) as well as the possibility they offer to revolutionise traditional services (from audio-visual, video games and music, to new financial services);
  2. the approval of the Italian National Recovery and Resilience Plan (PNRR), with a view to supporting Italy's digitalisation and the expansion of ultra-fast broadband networks and 5G connectivity, providing new opportunities in TMT markets; and
  3. the adoption of the Italian National Cloud Strategy. The digital transformation of society, accelerated by the still ongoing pandemic emergency, has made the digitalisation of government at all levels (the public administration) a priority objective in order to guarantee citizens and businesses more high-quality, efficient and effective public services, as well as to create new development opportunities for the country's digital economy. In this transformative process, the use of cloud technology plays a central role due to its enabling features for simplifying and optimising the management of IT resources, reducing costs, and introducing new digital technologies.


i The regulators

Four main public authorities are entrusted with regulating the IT, media and telecoms sectors in Italy:

  1. AGCOM, established by Law No. 249/1997, is an independent administrative body empowered to regulate and supervise electronic communications, broadcasting and publishing in Italy. In 2012, Law Decree No. 201/2011 extended AGCOM's powers to postal services. AGCOM's activity follows two main directions: preserving fair competition among market operators by preventing the creation of monopolies; and protecting consumers by ensuring minimum standards of quality, pluralism and the provision of universal services. Although in principle AGCOM is deemed to be fully independent from any economic and political power, its members are appointed directly by the Italian parliament.
  2. The Ministry of Economic Development, through its Department of Communications. In coordination with AGCOM, the Ministry manages the radio spectrum by approving the national frequency allocation plan and by issuing the related tender procedures. Upon request by operators, it also grants authorisations for the provision of networks and ECSs, as well as for the provision of television and radio contents.
  3. The Agency for Digital Italy (AgID) assists in areas related to issues of public administration, digital connectivity to public offices and special public users, and integrating connectivity with advanced digital services.
  4. The National Cybersecurity Agency, established by Law No. 109/2021, is responsible for drafting and managing the national cybersecurity strategy, coordinating the stakeholders involved in cybersecurity at a national level and promoting common actions aimed at ensuring cybersecurity and developing the digitalisation of the public administrations of the country.

The role of the public sector in the development of the entire ultra-broadband policy in Italy is coordinated by the Presidency of the Council of Ministers through the Committee for the spread of high-speed broadband (COBUL). COBUL comprises the Presidency of the Council of Ministers, the Ministry of Economic Development, Infratel Italia SpA and AgID.

ii Main sources of law

The main sources of law in the TMT sector are:

  1. Legislative Decree No. 259/2003 (the Code), which implemented the comprehensive regulatory framework for electronic communications networks and services adopted in 2002 at the EU level, including the Framework (Directive 2002/21/EC), Authorisation (Directive 2002/20/EC), Access (Directive 2002/19/EC) and Universal Service Directives (Directive 2002/22/EC). In 2009, Directive 2009/140/EC, Directive 2009/136/EC and Regulation (EC) No. 1211/2009 were adopted to improve and update the 2002 regulatory framework, and the Code was amended accordingly. The Code sets out the rules governing both public and private telecommunications services, including the provision of internet-based services;
  2. Law No. 249/1997, which established AGCOM and set out its regulatory powers; and
  3. Legislative Decree No. 177/2005 (the Consolidated Text on Radio and Audio-visual Media Services), which contains the regulatory framework concerning radio and television broadcasting.

Italy is still in the process of implementing Directive (EU) 2018/1972, establishing the European Electronic Communication Code,2 as well as Directive (EU) 2018/1808, concerning the provision of audiovisual media services (the Audiovisual Media Services Directive).3

iii Regulated activities

Pursuant to Article 25 of the Code, any provider of networks or electronic communications services (ECSs) is required to obtain an authorisation from the Ministry of Economic Development to operate in Italy.

Article 1 of the Code defines the notion of ECSs as those services, normally provided for remuneration, which consist wholly or mainly in the transmission of signals on electronic communications networks (ECNs). ECNs, broadly speaking, consist of any transmission system, including any switching or routing equipment or any other resources, including passive network elements that permit the conveyance of signals by wire, radio, optical or other electromagnetic means, in particular, satellite networks; fixed-to-mobile terrestrial networks (whether circuit or packet switched, including the internet); networks for the broadcasting of television or radio programmes; any other system for the transport of electricity in so far as it is used to convey electronic signals; and television cable networks irrespective of the kind of content transported.

The provider can start to operate as soon as it has filed the request for authorisation, without having to wait for any formal consent from the competent authority. However, no later than 60 days from the filing, the Ministry of Economic Development must verify that the conditions and requirements are met and grant the authorisation or, where appropriate, impose a ban on the activity. The authorisation is granted for a maximum 20-year period, is renewable and can be transferred to third parties.

The authorisation grants the provider the right to negotiate interconnection with pre-existing network providers and telecommunication services operators. It also entails the right to use radio frequencies.4

The provision of media services is also subject to an authorisation regime, as set out in the Consolidated Text on Radio and Audiovisual Media Services.

From a telecoms regulatory perspective, there are no requirements for a communications provider to be domiciled in Italy prior to or during the provision of services.

According to Annex 10 to the Code, companies holding a general authorisation for the installation and provision of public communications networks – including those based on the use of radio frequencies – and companies holding a general authorisation for offering telephone services to the public (subject to some exceptions) are required to pay an annual contribution whose amount depends on the number of users to which the services are offered (up to a maximum of €75,500 if the service is provided throughout the country).

If the Ministry ascertains the failure of a company to comply with one or more of the conditions required to gain the general authorisation – or relating to the granting of rights to use radio frequencies and numbers – it may file an injunction to end the infringement and restore the previous situation. If within the period required the company does not remedy the infringement, the Ministry may impose a fine or other strict measures. Pursuant to Articles 98 and 102 of the Code, in the case of installation and provision of electronic communications networks or services in the absence of a general authorisation, the Ministry may impose a fine, to be determined in reasonable relation to the gravity of the offence. Additional charges may be imposed in the case of breach of provisions on spectrum allocation.

iv Ownership and market access restrictions

Italian law generally makes no distinction between Italians and foreign nationals concerning investment and ownership in the telecommunications sector. However, Article 25, Section 1 of the Code provides that restrictions on the general authorisation regime provided by law can be applied by the Ministry of Economic Development to non-EU or non-EEA citizens and enterprises.

Moreover, the Ministry of Economic Development can issue an authorisation to non-EU companies only if Italian entities would have a reciprocal right to enter the market in their country.

Access to the telecommunications sector is also affected by the general rules set out in Law Decree No. 21/2012, as implemented by Presidential Decree No. 85/2014, concerning the regulation of strategic operations in the communications sector, such as the installation of infrastructure and the provision of broadband services.

These rules give the government special powers when facing operations that could constitute a threat to national security and defence, namely, the possibility to:

  1. impose additional requirements related to supply safety, data security and technology transfers;
  2. impose a veto on the merger or demerger of a company, on its transfer or the transfer of its registered office abroad, as well as on the dissolution of a company; and
  3. prohibit the purchase of shares by entities other than the government, Italian public bodies or entities controlled by them in the event that the purchase of shares would result in the purchaser holding a share of capital able to compromise the interests of defence and national security.

v Transfers of control and assignments

In the telecommunications sector, both AGCOM and the Italian Antitrust Authority (IAA) enforce merger control rules. Pursuant to Article 1.6(c)(11) of Law No. 249/1997, the IAA must obtain a non-binding opinion from AGCOM on proposed decisions concerning communication operators.

Italian law also provides ownership restrictions to ensure external pluralism and competition in the media sector. Pursuant to Article 43 of the Consolidated Text on Radio and Audiovisual Media Services, AGCOM exercises its control to prevent the creation of dominant positions and ensure that the anti-concentration limits provided by law are respected by companies operating in the integrated communications system (ICS).5 To this end, undertakings operating in the ICS are required to notify a proposed merger to AGCOM, which can veto the merger if it would result in the creation of a dominant position capable of harming pluralism. Any merger concluded without prior clearance by AGCOM is null and void.6 In January 2020, AGCOM adopted Resolution No. 13/21/CONS concerning the analysis of the economic size of the ICS for 2019. The analysis showed a decrease in the value of the ICS to €18.1 billion in 2019, or 1.01 per cent of GDP.7

vi Telecommunications laws and regulation affecting consumers

There are specific provisions designed to safeguard consumers' rights in Legislative Decree No. 206/2005 (the Consumer Protection Code), which provides general rules, and in Article 70 of the Code, which provides a list of compulsory information that should be included in contracts concluded with consumers or other final users, in particular:

  1. any restriction on the provision of emergency services;
  2. information on any other conditions limiting access to or use of services and applications;
  3. the minimum levels of quality of the service offered;
  4. the inclusion of personal data in a directory and the categories of data stored;
  5. details on prices and tariffs, as well as the way in which up-to-date information on all applicable tariffs, maintenance costs and payment systems may be obtained;
  6. the duration of the contract, the conditions for renewal and termination of the single services and of the contract (including benefits from promotional terms and the charges due on termination of the contract, such as any cost recovery with respect to the equipment furnished);
  7. any compensation which applies in case the level of quality of the service provided by the contract is not reached; and
  8. information on dispute resolution.

Telecommunications and internet access

i Internet and internet protocol regulation

Offering services over the internet is governed by the general provisions set out in the Code and is subject to a general authorisation. In this context, the purpose of the Code is to: promote efficient investments and innovation in telecommunications facilities; increase flexible and efficient management of frequencies spectrum; strengthen security measures in communications; and consolidate users' rights.

Given the variety of internet-based services (e.g., email, mailing lists, social networks and web search engines), all attempts to provide a comprehensive internet regulation have been unsuccessful. Nonetheless, sector-specific regulation exists, for example, with regard to online piracy. The digitisation of communications has exponentially increased the ability to reproduce and distribute works online without the consent of the copyright owner. Pursuant to Article 182 bis and 182 ter of Law No. 633/1941 (the Copyright Law), as amended by Law No. 248/2000, both AGCOM and SIAE, the Italian association of authors and publishers, are competent to prevent and detect online copyright violations.

In exercising its powers, through Resolution No. 680/13/CONS, AGCOM adopted the Regulation on the protection of copyright on ECNs, the first measure ever adopted in Italy to fight online piracy. The Regulation aims to protect online copyright through two complementary actions: support for the development of a legal offer of digital works, and fighting against piracy through effective, proportionate and dissuasive enforcement procedures.8

Legislative Decree No. 35/2017 entrusted AGCOM with the tasks of monitoring the adoption by collective management organisations of appropriate governance and financial standards in relation to rights holders and users, and the granting of multiterritorial licences for copyright on musical works for online use in order to promote their cross-border dissemination.9

Finally, Law No. 167/2017 introduced new provisions in the field of copyright by entrusting AGCOM with the power of adopting precautionary measures for the protection of copyright, as well as measures preventing the reiteration of copyright breaches that have already occurred. AGCOM implemented Law No. 167/2017 by adopting Resolution No. 490/18/CONS, which significantly amends the Regulation on the protection of copyright on ECNs. In July 2020 and in July 2021, AGCOM made additional amendments to the Regulation by adopting respectively Resolution No. 295/20/CONS and Resolution No. 233/21/CONS. In addition, AGCOM has opened a public consultation (Resolution No. 540/20/CONS), aimed at further amending the Regulation on the protection of copyright in light of Decree-Law No. 34/2020, which extended the AGCOM's powers to assess cases of unlawful distribution of content on the network through instant messaging services that use, even indirectly, users' telephone numbers.

In August 2021, the Italian government published the first draft of the Legislative Decree10 for the implementation of the EU Directive 2019/790 on Copyright and related rights in the Digital Single Market.

ii Online platforms

From 2013 – as a result of the changes introduced by Law No. 103 of 16 July 2012 in the Consolidated Text on Radio and Audiovisual Media Services – AGCOM has supervised and monitored the competitive environment and pluralism of information. It does so with reference to online advertising brokerage platforms, including search engines and social networks, as well as video sharing and video streaming platforms and online newspapers. These matters (which include large digital portals and global sharing platforms) are economic resources relevant to the identification of the ICS. The resulting surveillance and monitoring activities are carried out through the use of a series of survey tools and periodic data collection relating to revenues, costs and ownership structures. It is also achieved through the annual communication to the Economic Information System (IES)11 and the Register of Communication Operators (RCO).12

AGCOM controls and regulates online platforms to ensure transparency and publicity of ownership structures, and to monitor competitive conditions and the state of information pluralism on the internet. In particular, these platforms are subject to an annual assessment of the economic size of the ICS. This allows AGCOM to apply the rules and anti-concentration measures governed by Article 43 of the Consolidated Text on Radio and Audiovisual Media Services,13 as well as the identification of the relevant markets for the protection of pluralism and the verification of the emergence of any dominant positions or positions prejudicial to pluralism.

Additionally, when the new European Electronic Communications Code (Directive 2018/1972/EU) is fully implemented at the national level, it will extend to online platforms and impose on operators certain obligations that so far have been imposed only on traditional media and telecommunications service providers. As a consequence, for example, national regulators will be able to impose regulatory measures on certain online platforms to allow for the interoperability of their services.

Moreover, with reference to online video sharing and video streaming platforms, new supervisory functions will be introduced into national law when the new Audiovisual Media Services Directive (Directive (EU) 2018/1808) is transposed.

According to AGCOM, the paradigm shift introduced by the success of online platforms and the spread of big data calls for a new regulatory strategy based on the most advanced, interdisciplinary and data-driven methodologies of analysis.14 For this purpose, AGCOM has launched a wide-ranging investigation into the services offered on online platforms (Resolution No. 44/21/CONS; see below).

On a different note, the 2019 Budget Law15 established a 'new' digital services tax, which repealed the digital transaction tax established by the previous Budget Law (Law No. 145/2018). The tax rate is equal to 3 per cent and applies to the revenues from digital service generated on a calendar year basis, starting from 2020. This new tax applies to entities exceeding certain turnover thresholds16 and applies only to revenues deriving from the supply of the following digital services: (1) provision of advertising on a digital interface targeted to users of the same interface; (2) provision of a digital multilateral interface aimed at allowing users to interact (also in order to facilitate the direct exchange of good and services); and (3) transmission of data collected from users and generated by the use of a digital interface.

Finally, Regulation 2019/1150 of 20 June 2019 promoting fairness and transparency for business users of online mediation services (the P2B Regulation) was adopted at the EU level. It introduces specific measures to ensure fairness, transparency and appropriate dispute resolution tools for business users when using online brokerage services and online search engines. In Italy, the P2B Regulation was implemented through Article 1, Paragraphs 515–517 of Law No. 178 of 30 December 2020 (the 2021 Budget Law), which came into force on 1 January 2021, and which amended Law No. 249/1997. The 2021 Budget Law also introduced two new obligations for online intermediation service providers and search engines offering services in Italy, even if not established in Italy: (1) an obligation to register to the Register of Communications Providers (the ROC) held by AGCOM; and (2) an obligation to pay an annual contribution to AGCOM aimed at ensuring coverage of the administrative costs sustained by AGCOM.

In order to implement the provisions introduced by the 2021 Budget Law, on 8 July 2021, AGCOM published Resolution No. 200/21/CONS, with which it: (1) amended Annex A of Resolution No. 666/08/CONS (the ROC Regulation), in order to include the providers of online intermediation services and the providers of online search engines (as defined by the P2B Regulation) in the list of subjects required to register with the ROC; and (2) amended Annex B of the ROC Regulation, extending to providers of online intermediation services and providers of online search engines the disclosure requirements to be fulfilled when submitting the application for registration with the ROC. On the other hand, as regards the payment of an annual contribution, AGCOM has not yet adopted the resolution implementing Article 1, Paragraph 517 of the 2021 Budget Law, which should clarify how providers of online intermediation services and online search engines have to comply with this obligation.

iii Universal service

The Universal Service Directive has been implemented in Italy by Articles 53–57 of the Code. These provisions state that all users on the national territory, regardless of their geographical location, shall be entitled to certain ECSs to be provided at a predetermined quality level.

Article 58 of the Code establishes that AGCOM may designate one or more undertakings as having a universal service obligation; AGCOM carries out an objective, transparent and non-discriminatory designation procedure, whereby no undertaking is a priori excluded from being designated; and until the designation, which to date has not been made by AGCOM, TIM is designated by law as having a universal service obligation.

The universal service in the telecommunications field currently includes the following services:

  1. the provision of access at a fixed location to the public communications network, which allows users to make and receive calls, communicate by fax, send data and have functional access to the internet;
  2. the supply of telephone directory services;
  3. the provision of public pay telephones, which also allows for free access to emergency numbers; and
  4. the supply of special conditions and options of service for disabled users.

TIM is required to submit to AGCOM, on an annual basis, a calculation of the net costs it faced in the previous year for complying with its universal service obligations. Verification of the calculation of the net costs submitted by TIM is carried out by an independent party, appointed by AGCOM. Pursuant to Article 62 of the Code, AGCOM is required to carry out an analysis aimed at assessing the potential unfairness of the costs relating to the provision of the universal service. If the unfairness is ascertained, AGCOM apportions the net costs to all operators of public communications networks which provide publicly available telephone services or mobile and personal communications services within the national territory, pursuant to Article 3, Paragraph 2, of Annex 11 of the Code, in accordance with the criteria of non-discrimination, transparency and proportionality.

In economic terms, the cornerstone of the universal service principle is the accessibility and flexibility of rates (i.e., the obligation to provide service even to unprofitable customers).

Although the concept of universal service has been extended over time to include a reference to functional internet access, it still does not include broadband services. However, through Resolution No. 113/16/CONS, AGCOM launched a preliminary investigation concerning the possibility to qualify the provision of broadband in the terms of the universal service. The results of the public consultation were summarised in June 2017 in Resolution No. 253/17/CONS. AGCOM concluded that the EU requirements for the inclusion of broadband internet within the universal service obligation are met with reference to the 2Mbps internet connection speed, considering that such connection speed is used at a national level by at least half of all households and at least 80 per cent of all households having a broadband connection.

iv Restrictions on the provision of service

Network neutrality

EU Regulation 2015/2120 laying down measures concerning open internet access (the Open Internet Regulation) has direct effect in Italy.17 Article 3(3) of the Open Internet Regulation prevents network operators from discriminating against other operators' customers or content. It requires providers of internet access services to treat all traffic equally when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, and the terminal equipment used.

Only reasonable traffic management measures can be implemented by providers of internet access services. In order to be deemed reasonable, such measures must be transparent, non-discriminatory and proportionate. They must not be based on commercial considerations but on objectively different technical quality of service requirements for specific categories of traffic. The measures must not monitor specific content and must not be maintained for longer than necessary. Providers of internet access must not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories of them, except as necessary, and only for as long as necessary. In particular, providers may only do this as necessary to achieve certain specified aims including compliance with the law, network, service and terminal equipment integrity and security, and to prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.

Article 6 of the Open Internet Regulation requires Member States to determine the penalties applicable to infringements of Articles 3 (safeguarding of open internet access), 4 (transparency measures for ensuring open internet access) and 5 (supervision and enforcement).

Although there is no law in Italy that specifically regulates network neutrality, the latter has become a growing concern in AGCOM's agenda. In 2011, AGCOM launched a public consultation entirely focused on net neutrality, the results of which were summarised in Resolution No. 714/11/CONS.

The respect of the net neutrality guarantees provided by the Open Internet Regulation is monitored by AGCOM.

By Resolution No. 348/18/CONS, AGCOM established the right of end users to use terminal equipment of their choice and to enter into agreements with ISPs that do not limit the exercise of this right (the 'free modem' right). ISPs cannot refuse to connect to the network the terminal equipment chosen by the user, nor can they impose additional charges or unjustified delays on end users. In February 2020, according to a ruling by the Regional Administrative Tribunal for Latium (TAR Lazio) (TAR Lazio, No. 1200, dated 23 October 2019) on the appeals against the Resolution No. 348/18/CONS, AGCOM complied with a court-requested modification of the implementing measures concerning the right of end users to use the terminal equipment of their choice. TAR's judgement established that ISPs may impose additional charges on the end user failing to return the unused equipment provided free of charge by the ISP (i.e., if the end user chooses not to use the free of charge modem provided by the ISP and included in the bundle offer). Following the TAR Lazio's ruling, AGCOM approved some amendments to the Resolution No. 348/18/CONS by adopting the Resolution No. 34/20/CONS on 13 February 2020. Hence, AGCOM defined that in case of bundle offers – also including a modem provided by the ISP free of charge – the ISP has to commercialise the same offer without its own modem (although originally provided free of charge) or to offer its own modem as an option, in order to guarantee the right of the end user to use the terminal equipment of their choice and the economic interest of the ISP in the restitution of the modem. Finally, on 2 August 2021, the Council of State declared unfounded the appeal proposed by Telecom SpA against the above-mentioned TAR ruling (Council of State, No. 5702, dated 2 August 2021). It found AGCOM was competent to adopt Resolution No. 348/18/CONS, since the Open Internet Regulation identifies the national regulatory authorities as the competent entities not only to monitor but also to act against agreements or conducts that could harm users' rights. This enables AGCOM to introduce clauses that replace those negotiated by the parties in violation of end users' rights.

Additionally, the monitoring and supervisory activities carried out by AGCOM also concentrated on traffic management measures, as well as on the supply of 'specialised services'.18 With regard to zero-rating offers (i.e., those offers where an ISP applies a zero price to the data traffic associated with a particular application or class of applications (and the data does not count towards any data cap in place on the internet access service)), AGCOM supervisory power focused on inducing providers to alter their contractual conditions, removing elements of potential incompatibility with EU Regulation No. 2015/2120.19 AGCOM monitors and publishes data on the minimum contractually agreed speed. The monitoring results are published on a webpage20 ensuring end users the possibility to verify the contractually guaranteed minimum bandwidth. Moreover, AGCOM verifies ISPs' contractual conditions and terms of service and publishes them on its website.21

Moreover, AGCOM participated in the work of the Body of European Regulators for Electronic Communications (BEREC) expert groups to adopt an opinion on the implementation of national regulatory authorities' obligations on net neutrality. This activity was also preparatory to the revision of the 2016 BEREC Guidelines on Open Internet. On 16 June 2020 the new BEREC Guidelines on the Implementation of the Open Internet Regulation (BoR (20) 112) were approved.22

Finally, AGCOM is aware of the possibility that EU network neutrality regulations may hinder the deployment of 5G, given that 5G services will rely on a core feature called 'network slicing', which allows a network operator to provide dedicated virtual networks with functionality tailored to different services or customers over a common network infrastructure.23 However, as seen, under the Open Internet Regulation the principle of net neutrality does not prohibit an ISP from adopting 'reasonable' traffic management measures. AGCOM seems to suggest that network neutrality's influence on the deployment of 5G will likely be determined by how the possibility to adopt reasonable traffic management measures will be interpreted, in an effort to accommodate network slicing and other new business models needed to support the deployment of 5G, yet without compromising the principle of network neutrality.24

Liability of ISPs

As regards the liability of ISPs, pursuant to Article 17 of Legislative Decree No. 70/2003, ISPs are not subject to a general monitoring obligation with regard to content uploaded by their users that ISPs transmit or store; nor are they subject to a general obligation to actively seek facts or circumstances indicating illegal activity. However, when informed of any unlawful conduct or information provided by recipients of their service, they must promptly inform the competent judicial or administrative authority. In addition, upon request by the authorities, they must promptly prohibit access to illegal content. Failure to comply with this requirement may result in their civil liability.

Measures against unsolicited phone calls, faxes, emails and texts

Presidential Decree No. 178/2010 established a Public Objections Register. The Ministry of Economic Development – Department of Communications has entrusted the management of the Register to the Ugo Bordoni Foundation (FUB). Anyone, whether a natural or legal person, whose telephone number is listed in public telephone directories can subscribe free of charge to the Register to stop receiving unsolicited sales and marketing calls.

If, notwithstanding the subscription to the Register, an interested person still receives unsolicited calls, he or she can seek the intervention of the Authority for the Protection of Personal Data or a judicial authority.

Article 130 of Legislative Decree No. 196/2003 protects consumers against unsolicited advertising through email, fax or SMS (such as spam) by requiring their prior consent to the use of personal data for commercial purposes.

On 4 February 2018, Law No. 5/2018 (the Telemarketing Law) entered into force, introducing new provisions on the functioning of the Public Objections Register. The main feature of the reform is the possibility to be included in the Register also when using mobile numbers and landlines not registered in telephone directories.

v Security

Homeland security

Law No. 43/2015 converted into law the Anti-Terrorism Decree.25 It contains urgent measures for the fight against international terrorism. To protect national security, the Law introduces measures to counter proselytising activities organised through the use of the internet. The use of IT tools is considered an aggravating circumstance for crimes related to terrorism or incitement to terrorism committed through IT tools. The Law also provides that the Italian Postal and Communications Police must constantly update a blacklist of websites that are being used for terrorist purposes in order to facilitate police investigation.


With regard to the limitations to self-expression on the internet, there is no criminal provision that specifically targets online defamation. Article 595 of the Italian Criminal Code contains the general provision on defamation. However, it does not refer to defamation committed through the use of the internet, not even as an aggravating circumstance.26

Data protection, privacy and the right to be forgotten

The protection of personal data in electronic communications in Italy is regulated by GDPR,27 which entered into force on 25 May 2018, and the Privacy Code,28 as amended by Legislative Decree No. 101/2018.

The GDPR has significantly changed the current Italian – and broader European – data protection framework. As a general rule,29 any operator in charge of collecting and processing personal data can do so only after obtaining the written consent of the person to whom the data relates or when one of the conditions set forth in Article 6 of the GDPR occurs (for example, when processing personal data is necessary to comply with a legal obligation of the controller; or to protect the vital interests of the data subject). To this end, the operator has to provide the user with any relevant information concerning the purpose of the data collection, including the rights of the user to access such data and to demand its modification or deletion.

Pursuant to Article 32 of the GDPR, network operators are subject to a general obligation of custody to reduce the risk of destruction, loss or unauthorised access to personal data.

Traffic data, meaning data processed for the purpose of conveying a communication on an ECN, must be deleted by the network operator as soon as the communication is complete.30 However, the operator is allowed to store it for a longer period of time – but in any case not longer than six months – if this is necessary for invoicing purposes. Moreover, the operator must also store data for the purposes of crime prevention. The storage period varies depending on the type of data at issue.31 The data to be retained includes the data required to, inter alia: trace and identify the source and the destination of a communication; identify the date, time and duration of a communication; and identify the type of communication. Location data (i.e., data indicating the geographical position of the terminal equipment of the user of a publicly available electronic communications service) can be processed only with the user's agreement, and provided that the user maintains his or her right to request the competent network operator to stop the processing, even temporarily. Users' consent is also required for the storing and accessing of cookies in their computers as well as any handheld device (i.e., any terminal).

Operators must adopt all the appropriate technical means to protect personal data. Pursuant to Article 126 of the Privacy Code, location data can only be processed when it is made anonymous (or with the prior consent of users, revocable at any time) and to the extent and for the duration necessary for the provision of the service requested. Failure to comply with these requirements may result in the application of both administrative fines and criminal sanctions.32

The operator processing the data has to inform AGCOM, the Italian Privacy Authority and the data subject about any risk of breach of network security, or about any breach of personal data that has occurred.

Privacy concerns also underlie the right to be forgotten, which is the right for individuals to have information about themselves deleted from the internet so that they cannot be found through search engines.33

At the national level, one of the most prominent judgments in this field was rendered by the Court of Cassation in Google v. Vivi Down,34 concerning the broadcasting on Google Video of a video showing some boys humiliating a fellow student suffering from Down's syndrome, and also insulting the Vivi Down association. Google's managers faced criminal charges for failing to prevent online defamation and for having unlawfully processed personal data concerning the health condition of the boy. However, in the end, they were acquitted of all charges. The Court of Cassation specified the characteristics of the right to be forgotten in a case35 concerning the breach of such right by both the director and the publisher of an online newspaper due to the prolonged permanence online of an article on a criminal issue that had involved the plaintiffs in the past and was still pending. The Court specifically identified the unlawful processing of personal data in the maintenance of a direct and easy access to that article through the search engine, and not in the original methods of publication or in its archiving. The Court of Cassation identified some balancing criteria aimed at settling the conflict between the right of an individual to be forgotten and the opposing right for the media to report news.36 The Court established certain conditions that legitimate a compression of the right to be forgotten, such as:

  1. the contribution made by the news to a debate in the public interest;
  2. reasons of justice, police matters, protection of rights and scientific, educational or cultural freedom;
  3. the status of the public person of the subject involved;
  4. the truthfulness, actuality and continence of the news; and
  5. the granting of the right of reply before the spreading of the news.

The Court of Cassation further specified these balancing criteria by stating that, when facing a conflict between the right to be forgotten and the opposing right for the media to report news, the judge has to assess the public, concrete and current interest at the mentioning of the identifying elements of the people involved.37 This mention can be considered legitimate only if it refers to people who are in that moment subject to public interest, both for their notoriety or for their public role; otherwise, the right of such individuals to privacy with respect to past and hurtful events that have no trace in the collective memory has to prevail.

Following the judgment in Google Spain, Google has adopted a template to request the removal of search results deemed to be inappropriate, offensive or harmful to privacy. Alongside this measure, pursuant to Article 17 of the GDPR, data subjects have a right to obtain from the controller erasure of their personal data, inter alia, where the personal data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, the data subject withdraws consent on which the processing is based or the personal data has been unlawfully processed.

According to Article 140 bis of the Privacy Code, these rights can be enforced before the Italian Privacy Authority or, alternatively, before the judicial authority.

Interception of electronic communications

Law No. 43/2015 modified Article 226 of the implementing provisions to the Code of Criminal Procedure. When it is necessary to acquire information concerning the prevention of crimes having, inter alia, terrorist purposes, committed through the use of electronic devices, the public prosecutor may authorise the interception of communications for a maximum of 40 days. The prosecutor can also authorise the storage of traffic data for up to 24 months and the acquisition of all useful information from telecommunications operators.

Protection of children

Pursuant to Article 34 of the Consolidated Text on Radio and Audiovisual Media Services, as amended by Legislative Decree No. 120/2012, it is, in principle, prohibited to broadcast programmes that, taking into account the time of the broadcast, could seriously harm the physical, psychological and moral development of children, especially if the programmes contain violent or pornographic scenes.

Nevertheless, such programmes can be broadcast upon the request of broadcasting companies provided that they include a parental control system. In particular, they must be marked with an audio and visual signal at the beginning of and during the broadcast.

Legislative Decree No. 203/2017 has entrusted AGCOM with the task of classifying (from the perspective of children's protection) video games and audiovisual works to be spread online. Through Resolution 186/18/CONS, AGCOM issued a public consultation on this topic. By Resolution No. 74/19/CONS, AGCOM adopted the related regulation. In 2003, representatives of ISPs adopted the Italian Self-Regulation Internet and Underage Code, which contains specific provisions to target online child pornography. In June 2017, the Parliament adopted Law No. 71/2017, the first specific law in Italy targeting cyberbullying,38 which introduces measures to prevent the cyberbullying phenomenon, especially by emphasising the role of schools.39 Moreover, a victim of cyberbullying or her or his parents can demand a website operator to remove or obscure any personal data from the internet. If the operator does not comply with the request within 48 hours, the victim can lodge a complaint before the Italian Privacy Authority.


Cybersecurity is a growing policy concern in Italy. The threats in cyberspace can take different forms such as cybercrime, cyberespionage and cyberterrorism. In 2013, the government strengthened the protection of Italian cyberspace by creating a three-layer structure. The first layer is embodied in the Inter-ministerial Committee for the Security of the Republic, which is in charge of elaborating general strategies for national security. On the middle layer, the Decree establishes the creation of a permanent body in charge of connecting all administrations and regulatory bodies involved in the pursuit of strategic cybersecurity objectives. Finally, the Inter-ministerial Centre for Situation Assessment and Strategic Planning coordinates the recovery of systems functionality after an attack.

The National Anti-Crime Computer Centre for Critical Infrastructure Protection is a branch of the Italian police in charge of intervening to prevent and fight cyberattacks, cybercrime and industrial espionage in sensitive areas, such as defence, telecommunications and energy. The Italian police has also entered into various agreements with telecoms operators providing for the exchange of data and information in order to prevent, detect and fight cyberattacks.

The legal landscape in this sector has also been impacted by the Directive EU/2016/1148 on Security of Network and Information Systems (the NIS Directive), implemented by Legislative Decree No. 65/2018. The NIS Directive is the first EU-wide legislation on cybersecurity and introduces significant fines based on a percentage of global turnover, similar to the regime imposed for antitrust violations. It also identifies the authorities responsible for implementing the measures required by the directive for economic sectors that are considered to be strategic.

On 16 December 2020, the new European Cyber Security Strategy was presented along with two legislative proposals: the revision of Directive (EU) 2016/1148 on Security of Network and Information Systems (the NIS 2 Directive) and a new directive on the resilience of critical entities.40 The two draft directives cover a wide range of areas and address current and future online and offline risks from cyber and criminal attacks, natural disasters and other incidents.

In general, IT security is another important strategic area for investment in 2020 and 2021. Ongoing digital transformation projects are increasingly based on mobile technologies and the internet of things. This exposes companies to security risks more than ever before. Attacks are becoming more sophisticated and diversified. Increasing infrastructural and architectural complexity is therefore contributing to growth in the need to defend networks, systems and data.41 To better face these threats, on 14 June 2021, the Decree-Law No. 82 was adopted and converted into Law No. 109/2021. It defines the new national system of cybersecurity and establishes the National Cybersecurity Agency, with the objective of protecting national interests in the field of cybersecurity, as well as national security in cyberspace. The new agency is responsible for coordinating the public actors involved in cybersecurity at the national level and is entrusted with various tasks,42 such as preparing the national cybersecurity strategy, promoting common actions aimed at ensuring cybersecurity and developing the digitalisation of the public administration and of the country. Moreover, some functions regarding cybersecurity, previously entrusted to the Agency for Digital Italy (AgID), are also transferred to the new National Cybersecurity Agency, which will be responsible for the implementation of the National Strategic Framework for cybersecurity. In addition, the new agency is in charge of determining the minimum levels of security, processing capacity, energy saving and reliability of digital infrastructures for the public administration, including the Information Processing Centres (CED), as well as the standards of quality, security, performance and scalability, interoperability and portability of cloud services for the public administration.

Spectrum policy

i Development

Radio spectrum is an essential resource for telecommunications networks. It is the basis for wireless communications, but it is also key in areas such as broadcasting, transport, defence, environmental protection and energy. Due to the increasingly urgent demand for this scarce resource, spectrum policy has become crucial at both European and national level.

The management of the Italian radio frequency spectrum is entrusted to the Ministry of Economic Development and AGCOM. The Ministry elaborates the national frequency allocation plan, which divides radio spectrum into frequency bands and assigns each band to services and users.

On this basis, AGCOM adopts the national frequency assignment plan, which determines the location of radio stations and the frequencies assigned to each of them. The final allocation of frequencies and the granting of the related rights of use is made by the Ministry of Economic Development following a call for applications by network operators. Both the allocation and the assignment of RFs has to be based on objective, transparent, non-discriminatory and proportionate criteria.43

Implementing Decision (EU) No. 899/2017, the Budget Law for 2018 entrusted AGCOM with the definition of procedures to reassign the 700MHz frequency, currently used for DTTV broadcasting, to mobile broadband wireless services for the development of 5G (re-farming), and the adoption of a new frequency assignment plan for frequencies to be allocated to DTTV, to provide a new framework for the DTTV service.

In 2017, the Ministry of Economic Developments launched a selection for the realisation of 5G trials in five big and medium-sized cities for a duration of four years, namely Milan, Prato, L'Aquila, Bari and Matera. The trials have been awarded to three groups of companies: (1) Vodafone, in technical partnership with industry and the public administration; (2) WindTre and Open Fiber; and (3) TIM, Fastweb and Huawei Italy.

During 2020 and the first half of 2021, AGCOM provided numerous opinions to the Ministry of Economic Affairs. These opinions represent a secondary form of standardisation aimed at ensuring uniformity of application of the regulatory framework within national spectrum management. They concerned, among other things: the shared use of frequencies between operators for the construction of 5G networks; the transfer or rental of rights to use frequencies; the strengthening of spectrum networks also because of the covid-19 emergency; and reframing towards new mobile radio technologies.44

In 2020, AGCOM also actively collaborated with the two main EU bodies responsible for radio spectrum regulation and policymaking: the Radio Spectrum Committee (RSC)45 and the Radio Spectrum Policy Group (RSPG).46

ii Broadband and next-generation mobile spectrum use

Following the Radio Spectrum Policy Programme elaborated at the EU level,47 AGCOM aims to boost the development of broadband services in Italy through efficient assignment of frequencies.

Considering the increasing market demand for wireless broadband services, AGCOM has defined the rules for the assignment of the 3,600–3,800MHz band in Resolution No. 659/15/CONS. The Resolution establishes coverage obligations to meet the demand for high-speed connectivity services to implement the national strategy for ultra-broadband.

Following the European Commission's call to make the 700MHz frequency available to mobile broadband to implement 4G and 5G technology across Europe, Law No. 205/2017 (Budget Law for 2018) regulates the process that will lead, in the four-year period running from 2018 to 2022, to the assignation of the 700MHz frequency to wireless broadband services.

Through Resolution 231/18/CONS, AGCOM established the procedures for the allocation and the rules for the use of the 5G frequencies; on this basis, in July 2018 the Ministry of Economic Development launched a national auction for the allocation of 5G frequencies. The list of companies admitted to the auction procedure was published on 6 August 2018. On 10 September 2018, the companies presented their initial economic offers; the auction was awarded on 2 October 2018, with offers amounting to €6.55 billion. Vodafone and Telecom have been awarded the generic batch of the 700MHz band, in addition to the reserved portion already awarded to Iliad as a new entrant in the market. Italy is, therefore, the first European country to have assigned all the pioneering bands for the development of 5G, anticipating the terms set by the European Code of electronic communications.

In Resolution No. 129/19/CONS, AGCOM defined the criteria for converting rights to use frequencies for digital terrestrial services into rights of use of transmission capacity ('refarming').

In September 2018, the Italian parliament launched an inquiry concerning new telecommunications technologies, with particular regard to the transition to 5G and the management of big data. On 9 July 2020, Parliament approved a final document in which it came to the conclusion that 'in order to avoid inefficiencies and duplication of investments the promotion of the establishment of a single network . . . based on the existing infrastructure appears unavoidable.' It reasoned that 'the benefits of 5G can be achieved only through the deployment of a complete and efficient infrastructure in fibre optics'.

iii Development of infrastructure capable of offering high-speed services

Italy has a particularly heterogeneous territory with areas featuring low population density48 where it is not profitable for private operators to invest in new generation fixed networks in these areas because of the extremely high costs of fibre deployment and low rates of return.

In March 2015, the Italian government, in line with the Europe 2020 Strategy,49 approved the Italian ultra-broadband strategy.50 The strategy aims to cover most of the country with infrastructure capable of offering high-speed services. To implement it, the government decided to intervene directly in the market failure areas where, in the absence of public subsidies, private investment in innovative infrastructure would not take place. Direct public intervention aimed at encouraging investments for the building of a publicly owned infrastructure to be made available to all operators wishing to activate next generation network access services.

As part of Italy's ultra-broadband strategy, in June 2016 the Commission approved a national state aid scheme with a budget of approximately €4 billion.51 The Commission found the scheme to be in line with EU state aid rules, in particular its 2013 Broadband Guidelines.52 The Italian scheme would: (1) support ultra-broadband in market failure areas; (2) encourage the use of existing infrastructure; (3) foster competition among operators at retail level by ensuring that the newly built infrastructure is open to all interested operators on an equal footing; and (4) ensure granting of state aid by way of open tenders in line with EU and Italian public procurement rules and in compliance with the principle of technological neutrality.53

Pursuant to the scheme, which is set to run until the end of 2022, Italy would fully finance the new infrastructure, which would remain in public ownership. Infratel Italia SpA – a company of the Italian Ministry of Economic Development – was tasked with the implementation of the Italian ultra-broadband strategy. Infratel launched three tenders, setting up a concession model which would give to private operators the right to operate the network and invest in the white areas for 20 years (i.e., until 2037).54 Open Fiber – the fibre-to-the-premises (FTTP) infrastructure provider owned by Cassa Depositi e Prestiti SpA (CDP), the Italian national promotional bank,55 and the Italian utility Enel56 – won all three tenders.57

According to 2020 data from the European Commission, Italy's fixed-line broadband penetration rate is 29.9 per cent,58 while its mobile broadband penetration rate is 93.6 per cent.59 Several factors have contributed to Italy's relatively low overall penetration rates, including infrastructural limitations. According to the EU's 2020 Digital Economy and Society Index (DESI), ultra-fast broadband connections were only available to 30 per cent of households in 2019, compared with an EU average of 44 per cent.60 While fourth-generation (4G) mobile network coverage extends to 99.3 per cent of households, Italy ranks 23 out of 27 Member States on this metric.61 The country ranks high on 5G readiness.62 According to DESI, around 80.8 per cent of Italians connected to the internet in 2020, and 75.6 per cent did so on a daily basis.63 According to FTTH Council Europe data provided by iData, 2.8 million Italian households obtained access to ultra-high-speed broadband connections in 2020, marking the second largest increase in Europe.64

iv Spectrum auctions and fees

The design of the selection procedure for assigning the spectrum can have an impact on competition, particularly how the market structure will look after the assignment. As the uses of the radio spectrum have increased, the application of spectrum by the regulator has developed from a centralised subsystem, where its use was determined by the regulator, to a market-based approach where users compete for spectrum. The Italian regulatory authorities believe that competitive procedures, namely auctions, are the most appropriate means to assign radio frequencies to interested network operators. The merits of auctions are their transparency and capacity to attract foreign capital, and the fact that they allow the legislator to set a certain threshold of financial gain.

Auctions are generally structured as an open procedure with a simultaneous multiple round ascending mechanism. A large number of licences are simultaneously placed for sale and potential buyers call prices up during each round.

Only one operator for each group of companies is allowed to participate to avoid any risk of collusion and anticompetitive hoarding of frequencies. Participation in the auction must also be secured by an appropriate security deposit. Auction procedures have been used in Italy to assign the right of use for the 3.5GHz, 800MHz, 1,800MHz, 2,000MHz, 2,600MHz and 1,452–1,492MHz bands and, more recently, for the 5G frequencies (694–790MHz, 3,600–3,800MHz and 26.5–27.5GHz).

As for 5G, AGCOM's auction regulation promoted the efficient use of spectrum by means of innovative auction tools, such as 'use it or lease it' clauses (aimed at incentivising an efficient exploitation of spectral resources, these clauses provide that operators without frequencies in specific bands can use the frequencies in those bands that are not used by the licensees in a number of Italian municipalities included in a 'free list'), as well as 'club use' clauses (according to which each licensee can use all the awarded spectrum in areas where frequencies are not used by other licensees. To this end, each licence holder has pre-emptive rights on its assigned lot).

Moreover, the auction format included some special rules for new entrants, such as reserved spectrum, more lenient minimum coverage obligations and a right to national roaming (i.e., under specific circumstances, incumbent mobile operators that win spectrum in the 700MHz band must offer national roaming to new entrants on fair, non-discriminatory and transparent conditions). Additionally, to ensure competition between operators, a cap on the amount of spectrum that each operator can win was introduced.

AGCOM's regulation also fostered the access and the development of new players in the value chain, including infrastructure-only operators and service providers, who can collaborate with mobile networks operators to offer innovative 5G services. In particular, the obligation according to which each licensee must provide wholesale access to other players for the development of 5G services is aimed at fostering nontelcos (verticals) and their service providers to develop innovative business cases and at ensuring the widest level of 5G coverage and access for all users on the national territory (including also the deep digital divide areas), in line with the objectives of the Italian and the European framework.


i Regulation of media distribution generally

The Consolidated Text on Radio and Audiovisual Media Services sets out the rules governing the Italian broadcasting system. This regulatory framework includes different provisions for network operators65 and content providers.66

Network operators must obtain a 12-year authorisation granted by the Ministry of Economic Development. However, the authorisation does not entail the automatic allocation of RFs and the right to use them, which has to be obtained separately.

The provision of television and radio content is also subject to a 12-year authorisation granted by the Ministry of Economic Development. Television content providers are additionally required to fulfil the obligations established by AGCOM in Resolution 435/01/CONS.67

Private broadcasters have to comply with a number of limitations and obligations established by law to protect end users. They are required to organise programming based on issuer classification. Therefore, the nature of the authorisation determines the related obligations depending on whether the broadcaster has a commercial, social, information or teleshopping purpose. To this end, ICPs authorised to provide content at the national or local level are required to, inter alia, broadcast news and radio news daily, allow access to their programmes to all political actors on an equal basis and broadcast certain events considered by AGCOM as having a major importance for society, on a free-to-air basis.68

More stringent obligations are imposed on RAI SpA, the concessionaire of the public broadcasting service, which has to be provided throughout the whole national territory (i.e., servicing not only lucrative urban areas, but also rural areas).69 The new service contract between RAI and the Ministry of Economic Development was approved in December 2017 and covers the years 2018 to 2022, replacing the previous one (2010 to 2012). The new service contract focuses on information, the obligations regarding the access to the RAI offer by people with disabilities, and the obligations on broadcast advertising (in this regard, it prohibits advertisements in any form on thematic channels dedicated to children and advertisements on gambling). On the merits of the obligations regarding information, the new service contract requires, among other things, that RAI must activate 'tools aimed at combating the spread of fake news', calling for (1) the establishment of an internal permanent commission; (2) the development of specific educational and didactic content; and (3) the implementation of promotional initiatives regarding the risks deriving from the spread of fake news.

Article 48 of the Consolidated Text on Radio and Audio-visual Media Services assigns AGCOM the task of verifying that general public service broadcasting (and now also multimedia) in accordance with the provisions therein and with the RAI-Ministry of Economic Development National Service Contract. On 13 February 2020, AGCOM established RAI's failure to comply with the principles of transparency and non-discrimination provided for in the 2018/2022 National Service Contract. During the proceeding which was launched on 2 August 2019, it was found that the pricing policy adopted by RAI in the previous years was incompatible with the current negotiating provision that binds the public service broadcaster to adopt transparent practices in the sale of advertising space. AGCOM found that it was impossible to identify ex ante the procedure applied by RAI in establishing the prices of advertising for its clients, which resulted in differing practices such as offering discounts to some clients, establishing different prices in relation to the offer, and so on. This, in AGCOM's opinion, constituted a potentially discriminatory and non-transparent approach that was contrary to the national service contract. In addition, given that it was impossible to analyse how price lists were established and to evaluate the dynamics of the process of calculating prices, AGCOM was unable to exert its regulatory control. AGCOM therefore found a violation of Article 25 of the National Service Contract according to which RAI is required to guarantee 'the conclusion of advertising contracts based on the principles of competition, transparency and non-discrimination in order to guarantee a correct market structure. The competent sector authorities, also on the basis of the data provided by Rai relating to the sales prices of the advertising spaces actually applied net of the discounts applied with respect to the sales lists, annually verify compliance with the aforementioned principles'. RAI appealed AGCOM's decision. However, the TAR Lazio confirmed its lawfulness.70

In general, concerning the regulatory interventions on the prohibition of gambling advertisements, Law Decree No. 87/2018, converted into law by Decree No. 96/2018 (the Dignity Decree), provided for a general prohibition of any form of promotional communication concerning gambling. Law No. 208/2015 attributed to AGCOM supervisory and sanctioning powers concerning gambling advertising (a competence that was previously exercised by the Customs and Monopolies Agency and by the Italian Competition Authority for the aspects connected to unfair commercial practices). With Resolution No. 579/18/CONS, AGCOM published a questionnaire aimed at acquiring useful elements for the purpose of preparing guidelines on this topic. The guidelines were approved with Resolution No. 132/19/CONS.

When it comes to the regulatory measures to fight hate speech, AGCOM, over the past few years, recorded a growing recourse to expressions of discrimination against categories or groups of people, due, for example, to their particular socio-economic status, their ethnicity, their sexual orientation or their religious beliefs. With Resolution No. 403/18/CONS, AGCOM therefore kick-started the procedure for the adoption of a regulation specifically addressing non-discrimination and ending hate speech. The regulatory scheme was submitted to public consultation by Resolution No. 25/19/CONS and it was approved by AGCOM in Resolution No. 157/19/CONS, which adopts the 'Regulation containing material provisions on the respect of human dignity and the principle of non-discrimination and to counteract hate speech'.

ii Internet-delivered video content

The transition from traditional forms of media distribution and consumption towards digital converged media platforms continues to disrupt and change the commercial foundations of the entertainment and media industry. In Italy, as high-speed broadband connections become more widespread, internet video distribution continues to grow. According to the 15th Report on Communication by Censis–UCSI in 2018, the different forms of TV over internet (such as WebTV, smart TV and IPTV) have a 30.1 per cent audience (+3.3 per cent).

All of the most important TV channels have developed on-demand services that allow users to watch TV programmes online after the original broadcast. In addition to this, many operators have started to provide IPTV services. IPTV allows users to access television broadcasting networks (both in live-streaming and on-demand mode) via an internet broadband connection by using a set-top box (and not via a PC, tablet or smartphone, which can be used for WebTV).71

Although there is no comprehensive law governing the delivery of video content over the internet, by Resolution No. 606/10/CONS and Resolution No. 607/10/CONS, AGCOM has adopted two regulatory measures concerning the provision of audiovisual and radio media services on other electronic media (WebTV, IPTV and mobile TV) and the provision of on-demand audiovisual media services, respectively.

The year in review

i Relevant legislative and regulatory measures

The Recovery and Resilience Plan

European countries have been among the hardest hit by the health, economic and social crisis brought about by the covid-19 pandemic. The European Union, through the Multiannual Financial Framework (MFF), the Recovery and Resilience Facility (RRF) and other complementary initiatives, committed a total of €1.8 trillion to sustain the post-pandemic recovery and to improve the long-term prospects of Europe and its citizens. NextGenerationEU (also branded Recovery Fund), which adds €750 billion to the MFF, was agreed upon on 21 July 2020,72 becoming the largest stimulus package ever financed through the EU budget. By submitting a comprehensive national plan, every Member State is eligible to obtain funds to enhance resilience and mitigate the impacts of the crisis, as well as to support the green and digital transitions.

On 28 April 2021, the Italian parliament approved the PNRR,73 which foresees reforms and investments to be implemented in the next five years. Italy plans to use the full financing capacity of NextGenerationEU, and more: €191.5 billion, of which €68.9 billion is in grants and €122.6 billion in loans, will be financed through the RRF; €13 billion of grant money will come from the REACT-EU initiative; and €30.6 billion of additional funding will be completely drawn by public finance.

The PNRR defines a broad and ambitious package of investments and reforms to unleash Italian growth potential, as well as actions and interventions to overcome the economic and social impact of the pandemic, acting on the country's structural nodes and focuses on tackling environmental, technological and social challenges. It sets out three strategic goals: digitisation and innovation, ecological transition and social inclusion

The PNRR has six objectives, which each have 16 components and 48 intervention points, of fundamental importance for the telecommunications sector. In particular, the €46.3 billion earmarked for the 'Digitisation, Innovation, Competitiveness and Culture' mission – which totals €59 billion if budget planning funds are also factored in – is the second largest item of expenditure, accounting for more than 20 per cent of total resources, and is aimed at achieving the country's modernisation through a digital revolution in public administration and the production system, systemic reforms (in the justice system and public administration) and investments in tourism and culture.

Within this mission, €26.55 billion have been allocated to the 'Digitisation, Innovation and Competitiveness of the productive system' component, in order to encourage the digital transition of businesses, especially SMEs. This includes action to reduce the digital divide pursuant to the European Gigabit society plan. The main goals are: (1) to achieve the Italy 1 Gbit/s Plan, which provides for the completion of the ultra-broadband project, with initiatives to connect end users to ultra-fast connections and to extend ultra-broadband to grey areas; (2) to provide fibre optic coverage in areas considered a priority (including schools, health premises, natural parks, and museums and archaeological sites); (3) to provide 5G fibre along extra-urban communication routes and 5G networks in public sports facilities; and(4) to promote 5G services and the safety of 5G.

The PNRR also provides for investment in satellite monitoring. In particular, in line with the initiatives launched by the European Union and several Member States in the rapidly expanding sector at global level, the PNRR supports the launch of a satellites for monitoring the earth (optically and via radar) at high resolution. It also supports the related implementation of ground infrastructure for controlling the satellites and the establishment of an institute for environmental monitoring and defence of the territory. In particular, through AI systems and high-speed computing. Interventions are also planned in the field of tracking (Mirror Galileo) and low latency satellite telecommunications for institutional and government services (GovSatCom), also implemented in public–private partnerships. Moreover, a significant amount of nearly €11.75 billion has been earmarked for the 'Digitisation, Innovation and Security' component of the public administration. These resources will be used in various ways, starting with the development of a national cloud system and the promotion of effective interoperability of the PA databases, which will take place at the same time as, and in line with, the European GAIA-X project,74 in which Italy intends to play a leading role.

The PNRR supports taking advantage of digitisation, including the development of a 'PA Strategic Innovation Programme' to complete the reform of the public administration making structural changes in order to improve the Italian public administration and the service it provides to citizens and businesses, and to make it more competitive. In this regard, the PNRR provides for targeted investments and regulatory interventions. The goal is to provide citizens with access to information at a single access point through a unique and interconnected system with less bureaucratic involvement and a decrease in administrative procedural time and costs. Additionally, the digital identity system will be reinforced, and the existing systems (SPID e CIE) will be merged into a more simple and integrated system. The purpose of a unique digital identity system is to make contact between the citizens and the public administration easier, including by means of recently developed apps such as 'PagoPA' and 'IO' (digital channels that help citizens access services of the public administration).

The strategy for ultra-broadband 'Towards Gigabit Society'

The objectives of the PNRR have been incorporated into the Italian strategy for ultra-broadband 'Towards Gigabit Society', approved on 25 May 2021 by the Inter-Ministerial Committee for Digital Transition, which is aimed at bringing connectivity to 1Gbit/s throughout the country by 2026. In order to reach its goal, the strategy provides, on the one hand, the completion of the White Area Coverage Plan and the Voucher Plan, already governed by the 2015 Ultra-broadband Strategy, and, on the other hand, the implementation of five new 'strategies' approved by the Council of Ministers and contained in the PNRR, i.e.: (1) the 'Italia a 1 Giga' Strategy, which aims to provide connectivity at 1 Gbit/s download and 200 Mbit/s upload in areas of market failure classified as grey and black, in compliance with the principle of technological neutrality; (2) the 'Italia 5G' Strategy, which aims, inter alia, to encourage the spread of 5G mobile technology in areas of market failure; (3) the 'Connected Schools' Strategy, which aims to complete the Strategy for the ultra-broadband coverage at 1 Gbit/s in all school buildings in the national territory; (4) the 'Connected Health' Strategy, which aims to provide ultra-broadband connectivity at 1 Gbit/s to about 12,280 health facilities throughout the country; and (5) the 'Smaller Islands' Strategy, which aims to provide connectivity through an optical backhaul system to 18 small islands currently without fibre optic connections.

Wholesale-only model and the move toward creating a single combined fibre network

At the core of Italy's effort towards a technological development ensuring the evolution of network towards high-speed broadband connectivity and 5G, there is a strong infrastructural commitment, both with regard to the roll-out of fibre optic cabling of fixed networks and with reference to the build-out of the cells and network infrastructure for fifth generation mobile communication. In fact, the characteristics of the network infrastructure necessary for the deployment of 5G highlighted the need for a strong convergence between the two infrastructures, since fibre optic cabling is a prerequisite for the full development of 5G.

Two trends are emerging: the centrality of the wholesale-only model and the push toward a nationwide fibre network supplier that would help to rapidly expand broadband coverage and avoid the expensive duplication of infrastructure.

The three public tenders launched by the Italian government so far for fibre roll-out for in the 'white areas' of market failure (i.e., those areas where, in the absence of public subsidies, private investment in innovative infrastructure would not take place) have adopted a wholesale-only model. This model envisages a network operator that exclusively manages the network and makes it available (against payment) to companies that intend to use it to sell services to end customers, without being itself a provider of connectivity (both telephone or internet) services to the public. As explained before, Open Fiber – the fibre-to-the-premises (FTTP) infrastructure provider owned by state lender CDP and the Italian utility Enel – was awarded the three public tenders and epitomises the wholesale-only model.

The wholesale-only model is quickly becoming the established model in Europe for fibre network build-out, as all new market entrants have adopted this model. However, while other European countries, including France, Germany and the UK, have wholesale-only operators that are small local companies or individual metropolitan entities (e.g., Cityfibre in the UK), Italy is the only EU Member State where a wholesale-only operator (i.e., Open Fiber) has been established on a national scale.74

The new European Electronic Communications Code (EU Directive 1972/2018), whose implementing measures will shortly be adopted by Italy, provides in Article 80 that if NRAs conclude that an operator having significant market power is operating on a wholesale-only basis then a light-touch form of regulation will apply such that NRAs may only impose obligations in relation to non-discrimination75 or access to specific network elements.76 Other remedies (such as transparency, accounting separation, access to civil engineering or cost orientation) will not apply though an obligation to charge 'fair and reasonable pricing' may also be imposed. This shows a certain favour of the European legislator with regard to the wholesale-only model, which appears to be conducive to guarantee equal treatment between operators while channelling and developing investment in the construction of next generation networks.77

Against this background, the Italian government has been intervening to bring together Telecom Italia's (TIM) fibre assets with those of Open Fiber, creating a nationwide fibre network (i.e., a single broadband network) supplier that would contribute to deploy fibre throughout the country and increase broadband coverage (while avoiding ineffective duplication of infrastructure) to meet Italy's push for comprehensive fibre access. By having one national FTTP wholesale provider, which grants 'equal access' to retail providers, the government aims at increasing the likelihood of greater penetration of ultra-fast broadband within a shorter timeframe.

After previous attempts at pooling fibre assets of TIM and Open Fiber have come unstuck, the government-backed project of a single broadband network is slowly putting together its pieces. In November 2020, TIM joined forces with rivals Fastweb and Tiscali (and with the investment company KKR) in a joint venture called FiberCop, which will manage TIM's fiber network. After this step, it is envisaged that FiberCop and the other infrastructure operator (Open Fiber) will merge and manage a single broadband infrastructure (instead of doubling the networks) into which TIM's existing network was transferred alongside the fibre network built by FlashFiber, a JV between TIM and Fastweb, in which TIM holds an 80 per cent stake.78

The European Commission has already affirmed that the first step of the transaction (i.e., the creation of FiberCop) is not a concentration under the EU Merger Regulation.79 However, the IAA 80 on the contracts between TIM and its co-investors which could qualify as anticompetitive agreements under Article 101 TFEU. The IAA is concerned about the risk of foreclosing access to operators in the markets for wholesale access services and retail telecommunication services on the broadband fixed-line network. It remains to be seen how the IAA intends to make sure that TIM guarantees the openness of the network. In September 2021, the IAA published the commitments offered by the parties in order to address the IAA's concerns on their coordinated behaviour.81

The draft of the new Consolidated Text on Radio and Audio-visual Media Services

On 31 August 2021, a first draft of the Legislative Decree implementing the Directive 2018/1808/EU was published.82 It reorganises the provisions of the Consolidated Text on Radio and Audiovisual Media Services (TUSMAR) in the light of technological and market developments in the digital media services sector.

The implementation of Directive 2018/1808/EU will have significant consequences not only on the media services sector, but on the entire digital economic ecosystem. The fundamental goal is to outline a regulatory framework that is fair and responsive to the needs of the market to create a level playing field between traditional operators and OTTs which, acting above or beyond the network, are configured neither as broadcasters nor as publishers and, therefore, escape the regulatory provisions provided for these categories.

ii Relevant litigation

The Vivendi/Mediaset case and the modification of Article 43(11) of the Consolidated Text on Radio and Audiovisual Media Services

On 3 September 2020, the EU Court of Justice issued its judgment in case C-719/18, ruling that the application by the Italian government of national media plurality laws in relation to Vivendi's acquisition of a minority equity interest in Mediaset was illegal and in breach of fundamental EU Treaty principles.83 The judgment is noteworthy as it emphasises that media plurality rules must be applied on a proportionate basis (i.e., taking into account the structure, dynamism and innovation that characterises media markets).

In 2016, the French company Vivendi SA, which is the parent company of a group active in the media sector and in the creation and distribution of audiovisual content, launched a hostile acquisition campaign for shares in Mediaset Italia Spa (Mediaset), an Italian company operating in the same sector and controlled by the Fininvest group. It succeeded in securing 28.8 per cent of Mediaset's share capital and 29.94 per cent of its voting rights.

Mediaset submitted a complaint against Vivendi to AGCOM, alleging that Vivendi had infringed Article 43(11) of the Consolidated Text on Radio and Audiovisual Media Services. In order to safeguard pluralism of information, this Article prohibits companies, the revenue of which in the electronic communications sector, including that secured through controlled or affiliated companies, is greater than 40 per cent of the total revenues generated in that sector, from earning, within the ICS, revenue exceeding 10 per cent of the total revenues generated in that system in Italy. Mediaset alleged that this was the case with regard to Vivendi, which already held a significant position in the Italian electronic communications sector by reason of the control that it exerted over Telecom Italia.

In a decision in 2017, AGCOM declared that Vivendi had infringed that provision of Italian law by acquiring the shares in Mediaset and ordered it to put an end to that infringement.

While complying with the order issued by AGCOM by transferring to a third company 19.19 per cent of the share capital in Mediaset, Vivendi brought an action seeking the annulment of that decision before the TAR Lazio. The TAR Lazio then asked the EU Court of Justice, in essence, whether the freedom of establishment enshrined in Article 49 TFEU precludes legislation of a Member State that has the effect of preventing a company registered in another Member State, the revenue of which in the electronic communications sector at national level, including through controlled or affiliated companies, is in excess of 40 per cent of the total revenues generated in that sector, from earning, within the ICS, revenue exceeding 10 per cent of the total revenues generated in that system.

In its judgment, the European Court of Justice found that the freedom of establishment precludes the provision in question. The Court noted, first of all, that Article 49 TFEU precludes any national measure that is liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the TFEU. It found that Article 43(11) was liable to do so as it prohibited Vivendi from retaining the shareholdings that it had acquired in Mediaset or that it held in Telecom Italia and thus required it to cease to hold those shares in one or other of those undertakings insofar as they exceeded the thresholds laid down in that provision. Additionally, the Court observed that, even though a restriction on freedom of establishment may, in principle, be justified by 'overriding reasons in the public interest',84 such as the protection of pluralism of information and the media, that was not the case with regard to the provision in question, since it was not appropriate for achieving that objective. Furthermore, the Court found that treating a 'controlled company' in the same way as an 'affiliated company' when calculating the revenue of an undertaking in the electronic communications sector or the SIC does not appear to be reconcilable with the objective pursued by the provision at issue. The Court concluded that Article 43(11) sets thresholds that bear no relation to the risk to media pluralism, since those thresholds do not make it possible to determine whether and to what extent an undertaking is actually in a position to influence the content of the media.

In order to promptly implement the Vivendi/Mediaset judgment, Decree-Law No. 125 of 7 October 2020 was adopted, whose article 4 bis was provisionally introduced to fill the legislative void deriving from the disapplication of Article 43(11) of the TUSMAR. Article 4 bis aims to avoid that the presence of the same company in the electronic communications and media sectors, given the convergence between the two fields, could have a distorting effect on media pluralism.85 Implementing the new provision, on 15 December 2020, AGCOM initiated two proceedings, respectively, against the company Vivendi SA (Resolution No. 662/20/CONS), on account of the shareholdings held by the same in the company Telecom Italia SpA and in the company Mediaset SpA, and against the company Sky Italian Holdings SpA (Resolution No. 663/20/CONS), on account of the activity carried out by the company, through the companies directly and indirectly controlled, in the ICS and electronic communications sectors. Further investigations were started on 31 March 2021, in order to verify the positions held by the Fininvest SpA/Mediaset SpA group (Resolution No. 107/21/CONS) and by the Telecom Italia SpA group (Resolution No. 108/21/CONS).

All the proceedings ended with a dismissal.86

Finally, on December 23, 2020, the TAR Lazio (judgment No. 13958), following the EU Court of Justice ruling, annulled the 2017 AGCOM decision that had forced Vivendi to choose between the relevant stake in Telecom Italia and that in Mediaset.

Council of State – judgment No. 2631/2021 – Commercial value of personal data of social network users

On 29 March 2021, the Council of State found that Facebook had failed to provide its users with transparent information concerning the commercial exploitation of their personal data. At the same time, it found that the opt-out approach used for registering users to the platform did not constitute aggressive conduct.

The proceeding stemmed from a decision the IAA adopted against Facebook Inc and Facebook Ireland on 29 November 2018, following a complaint filed by three consumer associations. The IAA found that Facebook had engaged in an unfair commercial practice towards its users by failing to inform them adequately and immediately about the commercial nature of the processing of their personal data, while emphasising that registering to the platform was free of charge. For this reason, the IAA fined Facebook Inc €5 million. The IAA also found that Facebook had engaged in an aggressive commercial practice towards its users by unduly influencing its users' preference concerning the processing of data for commercial purposes. This was done by pre-selecting the option to consent to sharing data with third parties, while presenting them with the prospect of significant limitations should they deselect this option. For this conduct, the IAA also imposed a fine of €5 million.

On 18 December 2019, the TAR Lazio partially upheld two separate appeals brought by Facebook Inc and Facebook Ireland. On the one hand, the TAR Lazio agreed with the IAA findings that Facebook had misled its users into signing up to the Facebook platform 'for free', without providing adequate and timely information about the commercial use of their personal data. On the other hand, the TAR Lazio found that the pre-selected options provided to Facebook's users during sign up did not actually gather their consent to the transfer of data to third parties. This actually occurs at a later stage and on a granular level. Moreover, the TAR Lazio found that the IAA had not properly demonstrated the aggressive nature of such practice, and how it influenced the choices of the users.

Both Facebook and the IAA appealed against the TAR Lazio decision. Among other things, Facebook argued: (1) that the IAA had no authority to impose a fine on the company. According to Facebook, since there was no monetary price to be paid to subscribe to its services, hence there was no commercial activity at all, and consumer law could not be applied. Moreover, Facebook asserted that personal data cannot be considered a commodity that the user trades in exchange for the social networking services; (2) that the IAA did not have jurisdiction ratione materiae with regard to the IAA. In particular, according to Facebook, which referred to Articles 3 and 4 of Directive 2005/29 (the Unfair Commercial Practices Directive), only the GDPR could be applied to the practices addressed in the IAA decision; and (3) that there was no unfair commercial practice. Facebook asserted that the term 'free' applied because no monetary price was requested, and the average user was well aware that the income from targeted advertising was at the core of the business model of online free services. The appeal brought by the IAA focused on the part of the TAR Lazio's decision concerning Facebook's alleged aggressive commercial practice. According to the IAA, its initial findings were accurate, and the aggressive nature of those practices was evident from the continuous use of preselected options by Facebook, in several stages of users' registration process.

The Council of State, deciding on the appeal, with regards to the overlap between consumer and data protection law, held that under Article 4(2) GDPR, data protection law has a very broad scope of application, which might very well extend to any human activity. However, it concluded that, given the content of the GDPR and the case law from the Court of Justice of the EU, 'the scope of application of the special and exclusive regulation (also in the sense that it excludes the application of other regulations) cannot be “absolute” '. It emphasised in this regard that any human activity, as well as any field of law, involves the processing of personal data. Moreover, it explained that when the processing of personal data is involved, the legal system is meant to avoid 'any expropriation of the application of other sectoral regulations, such as, in the case in point, consumer protection, to reduce the protections guaranteed to natural persons'.

According to the Council of State there is also no overlap between the two systems of penalties. While GDPR penalties apply to the violation of data protection rules, which are not relevant in the present case, consumer law is concerned with 'the conditioning of the awareness of the user who, in order to obtain benefits described as free of charge, must give up personal data which will not be used exclusively to obtain the services which he is seeking, but will constitute a tool for profiling the user for commercial purposes, in the absence of adequate prior information for the consumer'.

The Council of State agreed with the IAA and the TAR Lazio that Facebook's practices amounted to an unfair commercial practice. It found that Facebook did not give its users information necessary for the informed decision of the consumer concerning a commercial act such as signing up to Facebook. In this regard, it emphasised that the information was 'general and incomplete', and did not distinguish between the use of data for the purpose of customising the service and for the purpose of providing targeted advertising.

Concerning the alleged aggressive commercial practice, the Council of State upheld the TAR Lazio's decision. The Council of State found that, according to the information and statements gathered from Facebook, there was no reason to consider that the opt-out mechanism 'would prevent the user from understanding how and for what purpose the data collected as a result of cross-platform integration would be used, both by third parties and by Facebook'. The 'pre-selection' of certain options did not involve any direct and immediate data sharing with third parties, and 'was followed by a further series of necessary steps, in which the user was asked to decide whether and which of his or her data he or she wished to share in order to enable integration between the platforms'. Moreover, according to the Council of State the commercial practice did not constitute 'manipulation' or coercion of behaviour, and hence users had freedom of choice and the practice could not be considered aggressive according to consumer law.

Eventually, the Council of State rejected both appeals on the grounds that the arguments presented were not well-founded, and upheld the first instance decision adopted by the TAR Lazio.

Council of State – judgment No. 2650/2021 – WiMax licensees

For over a decade, WiMax licensees used the lower end of the spectrum (3.4-3.6 GHz), without commercial success. This technology soon became obsolete. As the licences were nearing their end, the operators applied to extend them for six years until 2029 and to convert them to 5G. At the end of 2018, AGCM and the Ministry of Economic Development granted their requests. They applied modest fee increases ranging from €1 to €40 million. The chosen fee benchmark was the minimum reserve price set for the parallel auction, which at the time was ongoing for the upper-end 5G spectrum (3.6–3.8 GHz) and represented a successful multibillion-euro auction for 5G spectrum.

In particular, auction award prices for 5G spectrum peaked at around €1.7 billion for larger blocks (and about €500 million for smaller ones). So the winning bidders (TIM, Vodafone, Wind Tre and Iliad) ended up paying up to 10 times more than WiMax operators for possibly comparable 5G spectrum rights. Against this background, Fastweb dropped out of the auction and purchased operator Aria's renewed WiMax/5G licence for a much smaller amount.

This sparked a legal battle and the auction winners went to court seeking the annulment of the WiMax licence renewals.

In November 2019, TAR Lazio ruled that the conversion price was wrong. In particular, TAR Lazio found that the renewed licence fees were discriminatory and breached EU rules. The Court reasoned that under the EU regulatory framework, equal treatment is a legal cornerstone to ensure the sound progress of 5G and preserve undistorted competition. Accordingly, national public authorities must anchor spectrum fees to market value, in a transparent manner, for all licensees.87 The TAR Lazio ruled that, to ensure equal treatment among licensees, public administrations should have based WiMax license renewal fees on the award prices of the parallel auction for 5G spectrum. Instead, they had used as a parameter the auction's minimum reserve price. This was much lower than the winning bids. So it obviously did not reflect market value. As a result, licence fees unfairly penalised auction winners in favour of WiMax licensees. Nor had the public authorities pointed to any difference in spectrum quality justifying the steep price disparity. According to the TAR Lazio, after the award, the Ministry and AGCOM should have used their price adjustment powers to increase the WiMax licence renewal fees. Establishing a fair balance among the various fees would have avoided discrimination and undue distortions of competition among 5G spectrum users.

However, on 11 March 2021, the Council of State overturned the ruling issued in 2019 by the TAR Lazio and confirmed the validity of the 2018 decision to grant the six-year extension to licences owned by WiMax providers to use 5G-capable frequencies in the 3.4–3.6GHz range. The Council of State found that the extension 'was adopted at the end of a coherent reasoning'. With specific reference to the amount of the price to be paid, the Council of State deemed correct to anchor it to the base price of the 5G tender (and not to the cost of the award).

Council of State – judgments Nos 8358, 8533, 8534 and 8535/2020 – Serie A Championship TV Broadcasting Rights

In four judgments issued on 28 to 30 December 2020, the Council of State upheld four rulings of TAR Lazio,88 which had set aside an infringement decision issued by the IAA89 against the Italian top tier football league, its adviser Infront Italy Srl and TV broadcasters Sky Italia Srl and Mediaset Premium SpA, regarding an alleged anticompetitive agreement to alter the award of TV broadcasting rights for Lega's 2015–2018 seasons.

On 19 May 2014, Lega launched a tender procedure for the TV broadcasting rights of five different football packages. Despite the fact that Sky was the highest bidder for packages A and B,90 Lega and Infront decided to award package A to Sky and package B to Mediaset, on the assumption that the tender rules prevented the award of both packages to a single operator. Lega also awarded package D to Mediaset,91 despite its bid being conditional and therefore invalid under tender's rules. Mediaset then sub-licensed package D to Sky, upon authorisation granted by the IAA under Article 19(1) of Legislative Decree No. 9/2008 (the Melandri Decree).92 The IAA asserted that the parties had entered into a restrictive agreement, aimed at altering the 'natural' outcome of the tender, stating that: (1) Lega and Infront should have awarded both packages A and B to Sky;93 (2) Lega should have launched a new tender procedure for package D because Mediaset's offer was void; (3) the restrictive agreement was further implemented through the sub-licence agreement for package D between Mediaset and Sky; and (4) the restrictive agreement was entered into after the bids had already been presented but before the final award. Therefore, according to the IAA, this was an infringement by object with the additional effects of freezing Mediaset's and Sky's market shares and foreclosing potential entrants.

On 23 December 2016, the TAR Lazio upheld the appeals brought by the parties and annulled the IAA decision. In particular, the parties successfully contested the IAA's conclusion that their behaviour resulted in an infringement by object. The TAR Lazio reasoned that, before taking a position on the nature of an agreement, the IAA needs to assess whether a common interest exists for all the parties. Moreover, even when the IAA addresses possible restrictions by object, an assessment of the economic and legal context, as well as of the aim pursued through the parties' conduct, is required. In this case, according to the TAR Lazio, the IAA did not assess the economic and legal context nor established the common interest pursued by the parties. Indeed, the parties had reached an outcome that was more competitive than the one that would have followed the 'natural' tender procedure. In addition, the TAR Lazio found that the IAA had mistakenly defined the relevant market.

In its judgments, the Council of State confirmed that the IAA failed to prove that broadcasters colluded with Lega and Infront over the assignment of broadcasting rights. In particular, according to the Council of State, the TAR Lazio correctly ruled out the existence of an anticompetitive agreement by object, in light of the relevant legal framework and factual background, based on the parties' conduct. In fact, the Council of State noted that the IAA failed to closely analyse the market structure and erred in categorising the agreement as a restriction by object as there was no evidence that the four companies pursued a similar economic interest or a common plot through the alleged agreement. The Lega acted independently to correct the outcome of the tender in light of the no single buyer rule under Article 9(4) of the Melandri Decree. In addition, contrary to the IAA's view, Lega's intervention prevented the creation of a dominant position and ensured effective competition in the market.

iii IAA intervention regarding the TMT sector

Case A529 – Google/Compatibility of the Enel X Italia app with the Android Auto system

On 27 April 2021, the IAA imposed a €102 million fine on Alphabet Inc, Google LLC and Google Italy Srl for a refusal to allow an electric vehicle charging app developed by Enel X (Juice Pass) to be published on Google's Android Auto platform. According to the IAA, the abuse consisted in failing to implement appropriate technical solutions to allow interoperability of Juice Pass with Android Auto, despite Enel's repeated requests and Android Auto's indispensability to conveniently reach end users. Taking into account the presence of network effects and the risk of winner-takes-all phenomena, the IAA held that Google's refusal to allow JuicePass to be published on Android Auto could lead to the definitive exclusion of Enel X from the electronic vehicle charging sector. In the IAA's views, the purpose of Google's conduct would have been to exclude a competitor, who had developed a specialised app, so as to protect and consolidate the business model of Google Maps and its role as a point of access to users and to the flow of data generated by their activities.

The IAA decision has been appealed and the proceeding is still pending.

iv Other activities

AGCOM survey on the services provided by online platforms

In Resolution No. 44/21/CONS adopted on 4 February 2021, AGCOM launched a survey on the services provided by online platforms. The purpose of the survey is to: (1) assist AGCOM in categorising these services; (2) assess the main issues and their effects; (3) draw-up a map of the existing legal framework applicable to digital services and online platforms; (4) find out the most pressing issues that regulators should address; (5) select best practices based on a comparative overview of different legal systems; and (6) provide input for the adoption of new methodologies and strategies by the Italian Communications Authority in the digital regulatory context.

The survey has four sections: (1) categorising the existing infrastructural services available on the market; (2) defining the issues generated by or associated with each type of service; (3) drafting the applicable legal framework at national, European and international level; and (4) categorising and comparing regulatory and case law approaches in each Member State and at international level.

The survey is conducted, in coordination with the other activities undertaken by AGCOM with regard to the Digital Services Act,94 the Digital Market Act95 and the European Democracy Action Plan96 initiatives, by a working group composed of the various AGCOM offices.

The Italian Cloud Strategy

On 7 September 2021, the Italian Government launched the Italian Cloud Strategy in order to provide strategic direction for the implementation and control of cloud solutions in public administration. The purpose of migration to the cloud is to enable public administrations to provide digital services that use secure, efficient and reliable technological infrastructure. The migration is intended to be in line with the principles of privacy protection and the recommendations of European and national institutions. It is also intended to maintain the necessary guarantees for the country's strategic autonomy, security and national control over data.

The Italian Cloud Strategy sets out how to implement the 'cloud-First' policy, a key pillar of the digitalisation process of the public administration as identified in the PNRR. It guides and encourages the safe, controlled and complete adoption of cloud technologies for the public administration. The aim, in the long run, is for all the services provided to be based on 'cloud-native' applications, (i.e., natively developed on the basis of cloud paradigms).

The Italian Cloud Strategy is based on three fundamental pillars: (1) the creation of a National Strategic Hub, a national infrastructure for the provision of cloud services, whose management and control are independent from non-EU providers, pursuant to Article 33 septies, Paragraph 4, of the Decree-Law of 18 October 2012, No. 179, converted, with amendments, by Law No. 179 of 17 December 2012; (2) a qualification process for public cloud providers and their services to ensure that their characteristics and service levels are in line with the necessary requirements of security, reliability and compliance with relevant regulations and the country's national interests; and (3) the development of a methodology for the classification of data and services managed by public administrations to allow their migration towards the most appropriate cloud solution (the National Strategic Hub or qualified public cloud).97

The National Strategic Hub aims to equip the public administration with cloud technologies and infrastructure that benefit from the highest guarantees of reliability, resilience and independence. To this end, the National Strategic Hub will be geographically distributed throughout the country and located at the most suitable sites,98 in order to ensure adequate levels of business continuity and fault tolerance. The operational management of the National Strategic Hub will be entrusted to qualified national providers on the basis of appropriate technical and organisational requirements. The providers will have to ensure control over the data in accordance with the relevant legislation, and it should help the public administrations negotiate appropriate contractual conditions with cloud service providers.

The Cloud Strategy will be implemented in phases: (1) publication of the call for tenders for setting up the National Strategic Hub (expected to be published by the end of 2021); (2) procurement contract award for the implementation of the National Strategic Hub (the awarding of the contract should take place by the end of 2022 at the latest); and (3) migration of administrations (starting from the end of 2022 at the latest, the migration of public administrations to the National Strategic Hub should begin and it should be completed by the end of 2025). During the migration phase, priority will be given to those central public administrations that currently operate with their own data centres, as classified by AgID, that have structural or organisational deficiencies, or both, or that do not guarantee service continuity).

Conclusions and outlook

The year in review has been extraordinary for the Italian TMT sector, which is set to move past the consequences of the pandemic, as TMT businesses are building on the opportunities and challenges arising from 2020.

The disruption caused by the covid-19 outbreak and the pandemic response had a significant impact on the telecommunications ecosystem. It highlighted the importance of network development towards high-speed broadband connectivity and 5G across the country, in particular, in order to allow the transmission of significantly higher amounts of data in a very short time and favour the path towards convergence of fixed, mobile and broadcasting services. This trend, which has been accelerated and will continue in the post-pandemic world, has resulted in the increased scrutiny of policymakers and regulators.

Covid-19 has been a catalyst for digital progress in Italy as well as in other EU countries, with both end users and businesses witnessing the widespread adoption of digital technology. Fundamental steps have been taken by the Italian government and regulators towards the migration of public administrations to cloud computing, building on opportunities presented by enhanced network solutions.

Throughout 2020 and the first half of 2021, Italy continued to demonstrate its commitment to further improving its telecommunications infrastructure and developing new telecommunications and media technologies to be implemented in future years.

Looking ahead, the funds allocated by the PNRR to support Italy's digitalisation and the expansion of ultra-fast broadband networks and 5G connectivity provide new opportunities in TMT markets. The PNRR provides for €6.31 billion in funds for ultra-fast networks. These are for optical fibre, fixed wireless and 5G, with the aim of giving 1 Gb/s to families, businesses and schools. The challenge is to equip the country with adequate implementation capacities. In addition to using the funding in the PNRR effectively, the focus will be on the implementation at national level of the new EU Electronic Communications Code. The Code marks a change in approach in the telecommunications sector, introducing industrial policy objectives and expanding the role of the regulatory authorities.

Overall, the future of the TMT sector in Italy looks both exciting and promising, with growth in digital demand alongside the emergence and adoption of new technologies. The innovation and progress in the TMT sector will certainly be a critical factor in driving Italy's larger digital ambitions.


1 Marco D'Ostuni is a partner, Marco Zotta is a senior attorney and Riccardo Tremolada is an associate at Cleary Gottlieb Steen & Hamilton LLP. The authors wish to thank Giulia Lodigiani for her assistance during the development of this chapter.

2 Directive (EU) 2018/1972 recasts the existing telecoms directives (the Framework, Authorisation, Access and Universal Service Directives). Member States had until 21 December 2020 to transpose the Directive into national law. For now, Italy has adopted the European delegation law for 2019–2020, whose Article 4 sets the guidelines for the adoption by the government of the Legislative Decree, ensuring the effective transposition of the Directive in Italy. A first draft of the Decree was published on 31 August 2021. See Act No. 289 – Draft of Legislative Decree for the implementation of Directive (EU) 2018/1972 establishing the European Electronic Communication Code.

3 Member States had until 19 September 2020 to transpose it. Italy has not yet adopted the measures necessary to transpose the Directive, but it has adopted the above-mentioned European delegation law for 2019–2020, whose Article 3 sets the guidelines for the government to transpose this Directive. A first draft of the Legislative Decree implementing Directive 2018/1808 was published on 31 August 2021. See Act No. 288 – Draft of Legislative Decree for the implementation of Directive (EU) 2018/1808.

4 See Articles 26 and 27 of Legislative Decree No. 259/2003.

5 Pursuant to Article 2(g) of Law No. 112/2004, the ICS is 'the economic sector that includes the following activities: newspapers and periodicals; electronic publishing including the internet; radio and television; cinema; external advertising; product and service announcements and sponsorship'.

6 Article 43 has been significantly affected by the EU Court of Justice Judgment in Case C-719/18, Vivendi/Mediaset of 3 September 2020 and subsequently by Decree-Law No. 125/2020 (see below).

7 As far as the distribution of market shares is concerned, no player is higher than 20 per cent; in particular, the first 10 groups operating in the ICS – Comcast Corporation/Sky Italian Holdings; RAI Radiotelevisione Italiana; Fininvest (Mediaset, Mondadori, Mediamond); Alphabet/Google; Cairo Communication; Facebook; GEDI Gruppo Editoriale; Netflix; Amazon and Discovery – jointly represent, with €11.3 billion, 62 per cent of the ICS. While Comcast/Sky maintains its first position, with an incidence of revenues in the ICS higher than 15 per cent, RAI, with a weight between 10 per cent and 15 per cent, rises to second place, overtaking Fininvest (also with an overall share between 10 per cent and 15 per cent). Among the other operators, the weight of online platforms continues to grow, with Alphabet/Google, Facebook, Netflix and Amazon that are respectively in fourth, sixth, eighth and ninth position in the new top 10.

8 The Regulation is only addressed to intermediary service providers and not to end users. The Regulation ensures the provided protection only at the initiative of the copyright owner. If the owner has already filed a claim on the same matter before the judicial authority, AGCOM has to dismiss the matter.

9 Through Resolution No. 396/17/CONS AGCOM has adopted the regulation implementing the decree.

10 Act No. 295 – Draft of Legislative Decree for the implementation of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

11 With the aim of increasing the degree of transparency of markets and ensuring a correct application of the regulations on pluralism and competition, AGCOM, through the IES tool, has progressively refined the process of collecting data of operators active in the different phases of the online advertising chain, including the resources achieved through the sale of products and services online within the ICS economic area. In other words, the set of data has been adapted over time to respond to the developments that have taken place, which have concerned different aspects of the process of buying and selling online advertising (advertising formats, naming and profiling techniques, automation of the interaction between supply and demand, and price formation), as well as innovative ways of offering audiovisual services and online publishing products.

12 AGCOM also monitors online platforms offering instant messaging services, which must be registered with the RCO in connection with the direct or indirect use of national numbering resources for mobile and personal communications services.

13 Article 43 has been significantly affected by the EU Court of Justice Judgment in Case C-719/18, Vivendi/Mediaset of 3 September 2020 and subsequently by the Decree-Law No. 125/2020 (see below).

14 AGCOM, Annual report 2021, p. 124.

15 Law No.160/2019, published on the Official Gazette No. 304 of 30 December 2019.

16 The digital services tax is due by subjects carrying out business activities that, individually or at group level, jointly met, in the previous fiscal year, the following thresholds: (1) total amount of revenues (wherever arising) equal to or exceeding €750 million; and (2) an amount of revenues from digital services (arising in Italy) equal to or exceeding €5.5 million.

17 The Court of justice of the European Union interpreted the Open Internet Regulation for the first time in its judgment of 15 September 2020, joined cases C-807/18 and C-39/19, Telenor Magyarország Zrt v. Nemzeti Média- és Hírközlési Hatóság Elnöke. The Court of justice of the European Union found that the requirements to protect internet users' rights and to treat traffic in a non-discriminatory manner preclude an internet access provider from favouring certain applications and services by means of packages enabling those applications and services to benefit from a 'zero tariff' and making the use of the other applications and services subject to measures blocking or slowing down traffic.

18 See BEREC, Report on the implementation of Regulation (EU) 2015/2120 and BEREC Net Neutrality Guidelines, BoR (20) 166, 1 October 2020.

19 ibid.

22 The new Guidelines are designed to provide guidance on the implementation of the obligations of national regulatory authorities. Specifically, these include the obligations to closely monitor and ensure compliance with the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end users rights. The new Guidelines also provide further elements to support the implementation of the Open Internet Regulation with reference, among other things, to particular types of internet access (including in-flight access services and machine-to-machine (M2M) services on private networks).

23 See Italian Chamber of Deputies, IX Committee, Hearing of AGCOM Secretary General, Filippo Arena, on the fact-finding investigation concerning 'New telecommunications technologies with particular regard to the transition to 5G and the management of big data.' Rome, 18 September 2019.

24 ibid.

25 Law Decree No. 7/2015.

26 Nonetheless, Italian courts often use this provision to address online defamation.

27 Regulation (EU) No. 2016/679.

28 Legislative Decree No. 196/2003.

29 Article 23 of the Privacy Code.

30 Article 123, Section 1, of the Privacy Code. The exact moment of completion of the transmission of a communication depends on the type of ECS provided. For example, for a telephone call, the transmission will be completed when one of the users ends the connection. For an email, it will be when the recipient collects the message from the server of his or her service provider.

31 Articles 123 and 132 of the Privacy Code.

32 Articles 162 and 167 of the Privacy Code.

33 This principle has been affirmed by the European Court of Justice in case C-131/12, Google Spain SL, Google Inc v. Agencia Espanola de Proteccion de Datos, Mario Costeja Gonzales, 13 May 2014.

34 Court of Cassation, judgment No. 5107/14 of 17 December 2013.

35 Court of Cassation, judgment No. 13161 of 24 June 2016.

36 Court of Cassation, judgment No. 6919 of 20 March 2018.

37 Court of Cassation, judgment No. 19681 of 22 July 2019.

38 Law No. 71/1017.

39 See Articles 2 and 4 of Law No. 71/2017.

40 Proposal for a Directive of the European Parliament and of the Council on measures for a high common level of cybersecurity across the Union, repealing Directive (EU) 2016/1148, COM/2020/823 final and Proposal for a Directive of the European Parliament and of the Council on the resilience of critical entities, SEC(2020) 433 final, SWD(2020) 358 final, SWD(2020) 359 final.

41 Assintel report, Il mercato ICT e l'evoluzione digitale in Italia, 2020, p. 82.

42 Article 7.

43 Article 14, Section 1 of the Code.

44 AGCOM, Annual report, 2021, pp. 16–17.

45 The main issues addressed through the internal coordination of the RSC Committee concerned: (1) updating the harmonised use of 5.9 GHz band for safety-related ITS (i.e., intelligent transport system) applications; (2) the definition by the European Conference of Postal and Telecommunications Administrations of the technical conditions for the 5G use of the millimetre bands and to update Decision 2005/513/EC on the harmonised use of the 5GHz band for use with WAS/RLANs systems; and (3) focusing on the harmonised use of the new railway mobile radio systems.

46 RSPG, established by Commission Decision No. 2019/C196/08, adopts opinions and reports to assist and provide strategic advice to the Commission and other European institutions (Parliament and Council) on radio spectrum policy issues and on European coordination of implementation measures. AGCOM's participation in the RSPG contributed to the adoption of two important documents: (1) the Report on the development of regulation and technologies of spectrum sharing (published in February 2021) and (2) a proposal for an opinion on Spectrum Sharing – Pioneer Initiatives and bands, currently undergoing a public consultation.

47 Decision No. 243/2012/EU. Regarding the 5G pioneer bands (700MHz, 3,400–3,800MHz and 26GHz bands), EU legislation has laid down a number of deadlines to facilitate the roll-out of 5G, subject to certain exceptions for justified reasons, namely: (1) Member States are required to allow the use of the 700MHz band for terrestrial wireless broadband communications services by 30 June 2020; and (2) the European Electronic Communications Code requires Member States, by 31 December 2020, to reorganise and allow the use of sufficiently large blocks of the 3,400–3,800MHz band and to allow the use of at least 1GHz of the 26GHz band, subject to demand and to any significant constraints on migration of existing users or band clearance.

48 According to the OECD classification, rural and semi-rural areas represent 77.4 per cent of the territory, corresponding to 50 per cent of Italy's population.

49 The Europe 2020 Strategy underlines the importance of broadband deployment as part of the EU's growth strategy for the coming decade and sets ambitious targets for broadband development. One of its flagship initiatives, the Digital Agenda for Europe, acknowledges the socioeconomic benefits of broadband, highlighting its importance for competitiveness, social inclusion and employment. The achievement of the Europe 2020 objective of smart, sustainable and inclusive growth depends also on the provision of widespread and affordable access to high-speed internet infrastructure and services. See Communication from the Commission to the European Parliament, the Council, the Social Committee and the Committee of the Regions, COM (2010) 245 final, A Digital Agenda for Europe.

50 See Italy's ultra-broadband strategy has been periodically updated: in particular, following reviews of the investment plans of private operators resulting from public consultations, the public intervention areas were amended accordingly.

51 State aid SA.41647 (2016/N) – Italy – Strategia Banda Ultralarga.

52 Communication from the Commission, EU Guidelines for the application of State aid rules in relation to the rapid deployment of broadband networks (2013/C 25/01).

53 See State aid SA.41647 (2016/N) – Italy – Strategia Banda Ultralarga.

54 All three tenders were awarded according to a restricted procedure pursuant to Article 61 of the Italian Legislative Decree of 18 April 2016, No. 50 (i.e., the Italian public procurement code), which entails a pre-qualification phase and a subsequent selection phase via letters of invitation addressed to the qualified parties. The calls for tenders were also shared with AgCom, the IAA and the Italian Anticorruption Authority, which gave their positive opinion of the procedures. See Infratel, Progress report on the Italian ultra-broadband strategy, 30 November 2020, available at

55 CDP is a state-owned financial institution under the control of the Italian Ministry of Economy and Finance. Its purpose is to support the Italian economy as a lender and investor.

56 Open Fiber was created at the end of 2015 by Enel SpA, the incumbent electricity operator in Italy. Through Open Fiber, Enel aimed to create a nation-wide high-speed fiber network directly connecting fiber to the customers' premises ('fiber to the home', or 'FTTH'), by leveraging its internal knowledge, as well as its existing infrastructure, notably its ducts. In December 2016, Open Fiber merged with the telecommunications network Metroweb, as a result of which Enel and CDP became 50/50 co-owners of Open Fiber. The transaction was examined under the EU merger review procedure. The European Commission concluded that the merger would raise no competition concerns: as a wholesale-only operator, Open Fiber would have an interest in offering access on a non-discriminatory basis to the largest number possible of retail telecoms operators; there were only limited overlaps between Open Fiber's and Metroweb's activities; a number of competitors would remain active in the market for wholesale broadband access services; Enel and CDP were not active on any related markets and were not engaged in business activities in markets in which Open Fiber and Metroweb were active. European Commission, Case COMP/M.8234, 15 December 2016 – Enel/CDP Equity/Cassa Depositi e Prestiti/Enel Open Fiber/Metroweb Italia, available at: See also European Commission, Daily News, 16 December 2016, available at:

57 Tender No. 1 for white areas in Abruzzo, Molise, Lombardy, Emilia-Romagna, Tuscany and Veneto regions; tender No. 2 for white areas in Piedmont, Aosta Valley, Liguria, Friuli-Venezia Giulia, Autonomous Province of Trento, Marche, Umbria, Lazio, Campania, Basilicata and Sicily regions; tender No. 3 for white areas in the Calabria, Puglia and Sardinia regions.

59 ibid.

60 European Commission, 'Digital Economy and Society Index (DESI) 2020 Country Report Italy', 2020.

61 European Commission, 'Digital Economy and Society Index (DESI) 2020 Country Report by Components', 2020.

62 European Commission, 'Digital Economy and Society Index (DESI) 2020 Country Report Italy', 2020.

63 European Commission, 'Digital Economy and Society Index (DESI) 2020 Country Report by Components', 2020.

65 Article 2(1)(c) of the Consolidated Text on Radio and Audiovisual Media Services defines a network operator as 'the holder of the right to install, provide and operate an electronic communications network via digital, cable or satellite on terrestrial frequencies and the right to provide installations for the transmission, multiplexing, distribution and dissemination of frequency resources that allow the transmission of programmes to users'.

66 Article 2(1)(d) of the Consolidated Text on Radio and Audiovisual Media Services defines content providers as 'the person who has the editorial responsibility for the preparation of television or radio programmes and related data-programmes to be broadcast, even with conditional access, on terrestrial frequencies via digital, cable or satellite or by any other means of electronic communication and who is entitled to carry out commercial and publishing activities related to the diffusion of the images or sounds and related data'.

67 For example, pursuant to Article 6 of the Regulation content providers are required to store the complete recording of television programmes for a period of three months following broadcasting. Pursuant to Article 10, they must also reserve at least 20 minutes per week for advertising European works.

68 See Article 7 of the Consolidated Text on Radio and Audiovisual Media Services and AGCOM Resolution No. 131/12/CONS.

69 See Article 45 of the Consolidated Text on Radio and Audiovisual Media Services.

70 Judgment 25 January 2021, No. 345/2021 and AGCOM, Annual report 2021, p. 55.

71 In 2015, the most widespread WebTV, Netflix, made its debut on the Italian market.

72 NextGeneration EU, approved by the EU Council and the EU Parliament on 21 July 2021, based on the Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions – Europe's moment: Repair and Prepare for the Next Generation (COM/2020/456 final).

73 Piano Nazionale di Ripresa e Resilienza, approved by the Italian Parliament on 28 April 2021 and then approved by the EU Council on 13 July 2021, see Council implementing decision on the approval of the assessment of the recovery and resilience plan for Italy, 2021/0168 (NLE).

74 See Italian Chamber of Deputies, Survey on new technologies in telecommunications, with particular regard to the transition to 5G and the management of the big data, 9 July 2020. The only other examples of wholesale only operators on a national scale, born on very different assumptions from the Italian context, are in Australia (where the government has purchased the legacy copper network of the incumbent operator) and New Zealand (where the government has financed the ultra-broadband network on a national scale and not only in white areas). ibid.

75 Article 70.

76 Article 73.

77 The wholesale-only model is not the only new regulatory model promoted by the European Electronic Communications Code: there is also the co-investment model to which the code reserves more favourable regulatory treatment. Under Article 76 where an operator having significant market power enters into a co-investment arrangement with a competitor in respect of a plan to build fibre to the premises (for fixed networks) or base station (for mobile ones) then in some cases the newly-built assets may be exempt from access remedies that would otherwise have applied as a consequence of the SMP status. Any such arrangement must offer genuine risk-sharing on a co-ownership model and there are various other conditions that must apply too. Specifically, the programme must be open at any point in its lifetime to other service providers to join (though the price they pay may reflect the differing levels of risk applicable at different times). It must also facilitate downstream competition and access seekers who do not participate must still be able to access the same set of services as were available to them before the investment, adapting over time to improving levels of service and quality.

78 At the beginning of 2017, the IAA opened proceedings to verify possible competition restrictions connected with TIM's and Fastweb's Flash Fiber joint venture (see case I799 – TIM-Fastweb-Realizzazione rete in fibra, Decision No. 26399, 1 February 2017). Open Fiber, along with other parties intervening in the proceedings, raised a number of concerns with regard to the agreement between TIM and Fastweb, namely: (1) price fixing for the access to Flash Fiber's infrastructure; (2) market sharing due to TIM's and Fastweb's commitment to exclusively use Flash Fiber's network; and (3) a significant restriction of competition in the retail market. In general, Open Fiber held that the joint venture between TIM and Fastweb would be part of TIM's broader exclusionary strategy to preclude the entry of an infrastructure-based competitor in the market for wholesale fixed-line access services and shield its dominant position in this market and in the downstream retail services market. Ultimately, TIM and Fastweb presented commitments. The IAA accepted the commitments with some modifications in March 2018, closing the investigation (Decision No. 27102, March 28, 2018). See >

79 Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, which replaced Council Regulation (EC) No 4065/89 (as amended) for transactions after 1 May 2004.

80 See IAA, Case I850 – Accordi FiberCo, decision No. 28488 dated 15 December 2020.

81 See IAA, Case I850 – Accordi FiberCo, decision No. 29807 dated 7 September 2021.

82 Act No. 288 – Draft of Legislative Decree for the implementation of Directive (EU) 2018/1808 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (the Audiovisual Media Services Directive) in view of changing market realities.

83 EU Court of Justice, Vivendi/Mediaset, Judgment in case C-719/18, 3 September 2020.

84 id., paragraphs 55–59.

85 The evaluation of potential risk to media pluralism is therefore no longer linked to exceeding the revenue thresholds (40 per cent of the electronic communication market and 10 per cent of one of the ICS markets), but is based on the analysis of criteria such as revenues, barriers to entry, level of competition (plus other criteria defined by AGCOM in each particular case), from which it is possible to determine if the position of the company in both sectors – also through shareholdings capable of determining 'significant influence' pursuant to Article 2359 of the Italian civil code – actually implicates distorting effects or harmful consequences on media pluralism. In case of a positive response, AGCOM shall apply one of the actions set by Article 5 of Consolidated Text on Radio and Audiovisual Media Services, as the inhibition of the harmful act or operations or the imposition of measures affecting the structure of the company.

86 See AGCOM Resolutions Nos. 209/21/CONS, 210/21/CONS, 234/21/CONS and 235/21/CONS.

87 See Directive 2002/20/EC, Recital 32, and Directive 2002/21/EC, Articles 8 and 13 (transposed into Articles 13.6 bis, 14.1 and 35 of the Italian Electronic Communications Code).

88 TAR Lazio judgements of 23 December 2016, Nos. 12811, 12812, 12814 and 12816.

89 IAA decision of 19 April 2016, No. 25966, case I790, Vendita diritti televisivi serie A 2015-2018.

90 Packages A and B included the rights relating to eight football teams in the Italian top tier football league, to be broadcast via satellite and digital terrestrial TV, respectively.

91 Package D included exclusive 'cross-platform' rights for matches played by the remaining minor football teams and one of the eight top tier football teams.

92 The Melandri Decree sets out the legal framework under which broadcasting rights for live sports events must be offered in Italy.

93 According to the IAA, no explicit provision prohibited the award of both packages to a single operator.

94 Proposal from the European Commission for a Regulation of the European Parliament and the Council (COM) 2020 825 of 15 December 2020, On a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC.

95 Proposal from the European Commission for a Regulation of the European Parliament and the Council (COM) 2020 842 of 15 December 2020, On contestable and fair markets in the digital sector (Digital Market Act).

96 Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM (2020) 790 final of 3 December 2020, European Democracy Action Plan (EDAP).

97 The migration to cloud services or the National Strategic Hub will be governed through a centralised, smooth and uniform process for all administrations. Migration plans will then be defined according to the result of the classification of data and services.

98 Examples include the physical security levels of data centres, mitigation of natural disaster risk and integration with multiple connectivity sources.

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