Insights CJEU finds that Member States have a discretion under EU law to legislate as they think appropriate in relation to the reimbursement of costs incurred for the interception of electronics communications data


Under Italian law, in return for a fixed rate, telecommunications operators are obliged to intercept communications data when requested by a court. In 2017, the law was changed by Decree to reduce the reimbursement of costs associated with interception by at least 50%.

Colt Technology Services SpA and three other Italian telecoms operators issued proceedings in the Italian court seeking to annul the 2017 Decree, claiming that the fees provided for under the Decree did not fully cover the costs incurred. Hearing the case on appeal, the Italian Consiglio di Stato (Council of State) asked the CJEU whether EU law requires the full reimbursement of costs incurred by operators undertaking interceptions.

The CJEU found that EU law does not preclude Member States from introducing legislation that does not require full reimbursement of the costs incurred by providers of electronic communications services when they undertake the legal interception of electronic communications data, provided that the legislation is non-discriminatory, proportionate and transparent.

The CJEU noted that under Article 12 of the European Electronic Communications Code (2018/1972/EU), Member States have a general authorisation to ensure the freedom to provide electronic communications networks and services, subject to certain conditions listed in Annex I, including the enabling of legal interception by competent national authorities.

The CJEU said that it followed that the EU legislature had neither imposed nor excluded reimbursement by Member States of the costs incurred by undertakings enabling legal interception. It is therefore left to the discretion of Member States.

The CJEU found that that discretion had been exercised by Italy in accordance with the principles of non-discrimination, proportionality and transparency. The reimbursements provided for under Italian law were comparable for all operators offering electronic communications services in Italy, as they were based on fixed unit rates. Such rates were calculated in consideration of technological progress, which has made certain services less expensive, and the fact that such services are essential to an overriding public interest and can only be provided by telecommunications operators. Further, the rates had been fixed by means of a formal administrative act, which had been published and was freely accessible. (Case C-339/21 Colt Technology Services SpA v Ministero della Giustizia EU:C:2023:214 (16 March 2023) — to read the judgment in full, click here).