In Europa Way S.r.l. v. Italy, the European Court of Human Rights (ECtHR) delivered its judgment on 27 November 2025. For the first time, the ECtHR required domestic courts of EU Member States to set aside national legislation that is incompatible with EU law, thereby aligning itself with the strand of case-law of the Court of Justice of the European Union (CJEU) dating back to Simmenthal II (1978). Concretely, the ECtHR held that the interference with Article 10 of the European Convention on Human Rights (ECHR) was not “prescribed by law”, as the legal basis for this interference was found incompatible with EU law, as interpreted by the CJEU in Europa Way Srl and Persidera SpA (2017).

While this alignment with EU law is to be welcomed in principle, the way in which the ECtHR assessed the legal consequences arising from the CJEU’s prior judgment is doctrinally questionable. As the CJEU has consistently held since its judgment in IN.CO.GE. (1998), while it has the competence to declare national law incompatible with EU law, it is not competent to invalidate national law as such (paras 20-21). Accordingly, national legislation must be disapplied by the domestic authorities only insofar as it has been found incompatible with EU law, but can continue to be applied otherwise. Against this background, the ECtHR arguably erred in the present case by concluding that there had been no legal basis available, although the applicable legal basis was indeed not sufficiently foreseeable.

Legal and factual background

The applicant company, Europa Way S.r.l., is a company in the television-broadcasting sector and is based in Rome. In order to operate on the digital broadcasting market, the applicant company required digital terrestrial frequencies, which are the radio-frequency channels needed to broadcast television digitally. In Italy, the applicable legislation in this regard was Decree-Law no. 59 of 8 April 2008, which provided that the procedure for the allocation of these frequencies had to be determined by the Autorità per le garanzie nelle comunicazioni (AGCOM), an independent administrative authority. In its Resolution no. 181/09/CONS, AGCOM established a so-called “beauty contest” bidding model, in which frequencies are assigned free of charge to operators who best meet certain predefined objective criteria.

For budgetary reasons, several members of the Italian Chamber of Deputies objected to this type of procedure during parliamentary debates in 2011. As a result, the Ministry of Economic Development suspended the ongoing bidding procedure, in which the applicant company was participating, and on 29 April 2012, the legislature replaced the “beauty contest” system with a so-called fee-based selection procedure, in which the frequencies would be allocated to the highest bidder. As this replacement – established in Article 3 quinquies of Decree-Law no. 16 of 2012 – occurred without any transitional measures, the “beauty contest” bidding procedure in which the applicant company was participating (as the only candidate) was never resumed.

In the subsequent administrative court proceedings, the applicant company challenged the suspension of its bidding procedure. When the case came before the Council of State, it referred the matter to the CJEU under Article 267 TFEU. In its preliminary ruling, the CJEU held that the annulment of the applicant company’s bidding procedure by the Italian legislature was incompatible with Article 3(3a) of Directive 2002/21/EC, which stipulated the independence of national regulatory authorities in the context of electronic communications networks and services (Europa Way Srl and Persidera SpA (2017), paras 49-58). Moreover, it also held that the introduction of a fee-based selection procedure as such was not incompatible with EU law (paras 60-77).

As a result, the Council of State set aside Article 3 quinquies of Decree-Law no. 16 of 2012 and annulled the suspension of the applicant company’s bidding procedure, among other administrative acts. It then called upon AGCOM to assess independently whether to retain the original procedure or to replace it with the fee-based selection procedure. In its Resolution no. 136/19/CONS of 24 April 2019, AGCOM opted for the latter option by giving decisive weight to the legislature’s public finance objectives. When the applicant company brought enforcement proceedings in the Council of State to challenge this Resolution, the Council dismissed its complaints on the ground that AGCOM had adopted it independently, irrespective of any legislative requirements.

Reasoning of the ECtHR

When the case reached the ECtHR, it first confirmed that there was indeed an interference with the applicant company’s freedom of expression under Article 10 ECHR (paras 100-104). The Court then went on to examine whether the interference was prescribed by law. In that regard, it emphasised that no interference can be “prescribed by law” if it does not comply with domestic law (para 111). However, it also stated that it would not substitute its own interpretation of domestic law for that of the domestic authorities, unless the latter’s interpretation were “arbitrary or manifestly unreasonable” (para 111).

Furthermore, the ECtHR highlighted that the quality of the law in question should be taken into account as well (para 112). This includes its compatibility with the rule of law, which the Court described as “one of the basic principles of a democratic society enshrined in the Convention” and which precludes “a legal discretion granted to the executive to be expressed in terms of an unfettered power” (para 113). In the context of licensing procedures, this means that there must be sufficient guarantees against arbitrariness (para 114).

When turning to the facts of the case, the ECtHR observed that the annulment of the original bidding process had a clear basis in Article 3 quinquies of Decree-Law no. 16 of 2012, which the CJEU had nonetheless found incompatible with EU law (paras 115-116). As AGCOM had later still decided to apply this provision to refuse to resume the original bidding process, the ECtHR found that the interference with the applicant company’s rights under Article 10 ECHR had not been prescribed by law and found a violation of that provision (paras 117-118 and 129-130). The ECtHR reached this conclusion because – unlike the Council of State – it was not convinced that AGCOM had made this decision in full autonomy and independence (paras 126-127).

In other words, the ECtHR ruled that Italy had violated the applicant company’s freedom of expression under Article 10 ECHR by suspending and annulling an ongoing bidding process for digital terrestrial frequencies, thereby interfering with the independence of the competent media regulator. As such, the Italian authorities had, in the ECtHR’s view, deprived the applicant company of the legal safeguards needed to protect it as a broadcaster from arbitrary interference.

Towards a convergence of EU and ECHR law

Although it is not the first time that the ECtHR has considered EU law to be a part of domestic law (see, for example, Avotiņš v. Latvia (2016), para 100), the ECtHR’s judgment in Europa Way S.r.l. v. Italy (2025) is the first in which it recognised the obligation to set aside national law that is incompatible with EU law, as interpreted by the CJEU. This alignment with the CJEU’s own strand of case-law dating back to Simmenthal II (1978) is an important step in the convergence of the EU legal order and the ECHR system, which is to be welcomed for two main reasons.

First, the ECtHR’s innovation in the present case meaningfully contributes to the constitutionalisation of EU law. After establishing the direct applicability (see Van Gend & Loos (1963)) and primacy (see Costa/ENEL (1964)) of EU law, the CJEU established the general obligation of every domestic court to set aside national law that is incompatible with EU law in Simmenthal II (1978). The CJEU’s innovation in this regard was necessary to enforce its judgment in Simmenthal I (1976), as the Italian Constitutional Court had not yet recognised the full primacy of EU law at the time. However, due to the absence of a constitutional complaint at the EU level, the CJEU largely remained dependent on the goodwill of ordinary domestic courts to enforce its judgments, unless the Commission or another Member State were to start infringement proceedings under Article 258 or 259 TFEU.

Initially, the ECtHR could only find a violation of Article 6 ECHR (the right to a fair trial) if the domestic court in question had refused to give sufficient reasons for its refusal to request a preliminary ruling from the CJEU (Sanofi Pasteur v. France (2020), para 68). Since the ECtHR’s judgment in the present case – another Italian case – any substantive violation of EU law may also constitute a violation of the ECHR. While the ECtHR continues to lack the competence to autonomously interpret and apply EU law (see, for example, Büttner and Krebs v. Germany (2024), para 59), it now comes close to providing a de facto constitutional complaint against violations of EU law.

Second, the ECtHR’s innovation in the present case also meaningfully contributes to the enforcement of the ECHR itself, albeit more indirectly. Few constitutional law scholars know that in the 1990s and 2000s, the ECtHR attempted to constitutionalise the ECHR system in a similar way to the CJEU with the EU legal order. In Vermeire v. Belgium (1991), the ECtHR established an obligation on domestic courts to fill legal gaps that it had found incompatible with the ECHR (paras 25-26). In Dumitru Popescu v. Romania (no. 2) (2007), it even established a more general obligation of conventionality control on domestic courts (para 103). However, in the light of the growing judicial and political criticism of the ECtHR in the following decade, the Grand Chamber overruled the aforementioned strands of case-law (Fabris v. France (2013), para 75).

However, the criticism of the CJEU in respect of the constitutionalisation of EU law – though not inexistent either – is much more limited. Hence, in cases against EU Member States in which EU law is also applicable, the ECtHR has now established an alternative tool to indirectly enforce its own case-law in domestic legal orders. What is more, it is not unthinkable that the ECtHR would adopt a similar type of reasoning if ordinary domestic courts were to refuse to respect the case-law of their constitutional courts.

Overreach

Despite the normative desirability of the ECtHR’s innovation, I argue that the Court might have overreached in the present case. As the CJEU stated (Europa Way Srl and Persidera SpA (2017), para 77), EU law itself does not prescribe a specific bidding procedure for the allocation of digital terrestrial frequencies. Rather, it determines that, among other requirements, the competent regulatory authorities must remain independent. In the present case, the Council of State observed that AGCOM had independently decided to apply Article 3 quinquies of Decree-Law no. 16 of 2012, which established the fee-based selection procedure.

Nothing in the ECtHR’s description of the facts of the case indicates that this factual assessment made by the domestic court was unreasonable. As such, the ECtHR’s disagreement with the Council of State’s findings in this regard appears to contradict its own threshold of “arbitrariness” or “manifest unreasonableness” for interpreting domestic law (para 111). What is more, it is at odds with its more general stance that in principle, it cannot act as a “fourth-instance” court, assessing errors of fact or law made by domestic courts (De Tommaso v. Italy (2017), para 170). Rather, the ECtHR’s task is to verify whether the domestic authorities’ assessments are compatible with the ECHR.

Furthermore, the ECtHR overestimated the legal consequences of the CJEU’s judgment. Since the CJEU did not prescribe a specific bidding procedure, it did not prescribe a particular solution either to fill the legal vacuum that would emerge after setting aside Article 3 quinquies of Decree-Law no. 16 of 2012. Resurrecting the old system may have sounded logical, but was not the only option available from the perspective of EU law. As indicated, the CJEU does not have the competence to invalidate national law (IN.CO.GE. (1998), paras 20-21), which suggests that the aforementioned legal basis could still be applied, as long as AGCOM had independently decided to do so.

Therefore, it appears that the ECtHR was essentially focusing on the wrong issue. Rather than contesting AGCOM’s independence, the ECtHR could have concluded that the interference with Article 10 ECHR was not “prescribed by law” based on its own foreseeability test, which requires that every interference with ECHR rights must be sufficiently foreseeable for everyone affected by it. Although the ECtHR did mention the foreseeability requirement (paras 112-113 and 128), it omitted to apply it. Had it decided to focus on this issue instead, the ECtHR could easily have concluded that the only foreseeable option for the applicant company would have been to retain the original “beauty contest” bidding procedure as a transitional measure, rather than interrupting it before it was completed.

Conclusion

In Europa Way S.r.l. v. Italy (2025), the ECtHR established the obligation of domestic courts to set aside national law that is incompatible with EU law (as interpreted by the CJEU) for the first time, in accordance with the CJEU’s Simmenthal II case-law. While this innovation highlights a fruitful dialogue between the ECtHR and the CJEU and is to be welcomed from the perspective of both EU and ECHR law, it must be noted that the present case was arguably not the ideal avenue to introduce this novelty. Not only did the ECtHR act as a “fourth-instance” court, but it also overestimated the legal consequences of the CJEU’s judgment. While the ECtHR has become a reliable guardian of EU law, it should nonetheless consider adopting a more cautious approach in future cases.

All views in this blog post reflect the author’s personal opinions and are given in a private capacity.