The Court of Justice of the European Union has recently ruled in Case C-339/21 | Colt Technology Services and others.
In Italy, telecommunications operators are required, if they receive a request from the judicial authorities, to carry out interception of communications (voice, computer, telematic and data) in return for a fixed rate fee. The amounts which they receive were amended in 2017. A decree provided for a reduction of at least 50% of the reimbursements of the costs associated with interception. The affected telecommunications operators sought annulment of that decree from the Italian judicial authorities, claiming that the fees provided for do not fully cover the costs incurred.
The Italian Council of State referred the case to the CJEU and asked if EU law requires full reimbursement of the costs actually incurred by operators in carrying out such interceptions.
The Court has ruled that EU law does not require full reimbursement, provided that national legislation setting out less than full reimbursement is non-discriminatory, proportionate and transparent.
The Court said that the European Electronic Communications Code provides that a general authorisation for the provision of electronic communications networks or services may be made subject, by the member states, to certain conditions, among which the enabling of legal interception by the competent national authorities.
According to the Court, it follows that the EU legislature neither imposed nor excluded reimbursement, by the member states, of the costs that would be incurred by organisations which enable legal interception. Therefore, member states have discretion.
The Court considered that that discretion was exercised by Italy in accordance with the principles of non-discrimination, proportionality and transparency. The reimbursements provided for are comparable for all operators offering electronic communications services in Italy, because the reimbursements are based on fixed unit rates. The rates are calculated by taking account of technological progress in the sector which has made certain services less expensive, and considering the fact that those services are essential to the pursuit of general aims of an overriding public interest and that they can be provided only be telecommunications operators. Lastly, those rates are fixed by means of a formal administrative act, which is published and freely accessible.
