Broadband roll-out and access to existing utility infrastructures in Italy

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By judgment No 1114 released on 17 August 2016, the Regional Administrative Court for Lombardia ruled that, upon request of an electronic communications network operator, the Italian energy utility Enel Distribuzione S.p.A. shall provide access to its physical distribution infrastructure for broadband roll-out purposes. The execution of such obligation falls within the competence of the Municipality.

According to the Regional Court, pursuant to Article 2 of Law Decree 112/2008 and Article 3 of Directive 2014/61/EU public entities as well as public utilities cannot refuse to host the broadband network unless for objective technical reasons relating to the feasibility of the co-use of the infrastructure.

In case of refusal, it is for the Municipality to order the fulfilment of the obligation, without prejudice to the right of the electronic communications network operator to seek judicial intervention if the Municipality stands still.

Such conclusion is applicable also to claims arisen after the entry into force of Legislative Decree 33/2016 on 1st July 2016, which confirmed the Municipalities competence on the authorisation procedure for the re-use of the existing infrastructures.

In this respect, the Regional Court clarified that Article 9 of Legislative Decree 33/2016 partially amended the authorisation procedure before the Municipality, providing that, if a dispute arises, each party may seek the intervention of the Italian Communications Authority. The latter shall settle the dispute within two months, setting objective, transparent and proportionate terms and conditions for the access also with regard to the price to be paid by the electronic communications network operator.

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