CELEX: 62019CJ0689
Appeal
Electronic communications networks and services
Directive 2002/21/EC, as amended by Directive 2009/140/EC
Consolidating the internal market for electronic communications
Article 7(3) and (7)
Draft measure made accessible by the national regulatory authority
Wholesale fixed access market in the Netherlands
Joint significant market power
Comments of the European Commission communicated to the national regulatory authority
Obligation for the national regulatory authority to take the utmost account of them
Scope
Article 263 TFEU
Action for annulment
Admissibility
Challengeable act
Article 47 of the Charter of Fundamental Rights of the European Union

By its appeal, VodafoneZiggo Group BV (‘VodafoneZiggo’) seeks to have set aside the order of the General Court of the European Union of 9 July 2019, VodafoneZiggo Group v Commission (
T‑660/18
,
EU:T:2019:546
, ‘the order under appeal’), by which the General Court dismissed as inadmissible its action for annulment of the decision allegedly contained in the letter of 30 August 2018 sent by the European Commission to the Autoriteit Consument en Markt (Consumers and Markets Authority, Netherlands) (‘the ACM’), containing its comments on a draft of two measures made accessible to it by the ACM concerning the wholesale fixed access market in the Netherlands (Cases NL/2018/2099 and NL/2018/2100) (C(2018) 5848 final, ‘the act at issue’).
Legal context
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (
OJ 2002 L 108, p. 33
), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (
OJ 2009 L 337, p. 37
, and corrigendum
OJ 2013 L 241, p. 8
) (‘the Framework Directive’), states, in recital 15:
‘It is important that national regulatory authorities consult all interested parties on proposed decisions and take account of their comments before adopting a final decision. In order to ensure that decisions at national level do not have an adverse effect on the single market or other [FEU] Treaty objectives, national regulatory authorities should also notify certain draft decisions to the Commission and other national regulatory authorities to give them the opportunity to comment. … The cases where the procedures referred to in Articles 6 and 7 apply are defined in this Directive … The Commission should be able … to require a national regulatory authority to withdraw a draft measure where it concerns definition of relevant markets or the designation or not of undertakings with significant market power, and where such decisions would create a barrier to the single market or would be incompatible with Community law …’
Recital 19 of Directive 2009/140, which, inter alia, amended Articles 6 and 7 of the original version of Directive 2002/21, states:
‘The Community mechanism allowing the Commission to require national regulatory authorities to withdraw planned measures concerning market definition and the designation of operators having significant market power has contributed significantly to a consistent approach in identifying the circumstances in which ex-ante regulation may be applied and those in which the operators are subject to such regulation. Monitoring of the market by the Commission and, in particular, the experience of the procedure under Article 7 of Directive [2002/21] has shown that inconsistencies in the national regulatory authorities’ application of remedies, even under similar market conditions, could undermine the internal market in electronic communications. Therefore the Commission may participate in ensuring a higher level of consistency in the application of remedies by adopting recommendations on draft measures proposed by national regulatory authorities. In order to benefit from the expertise of national regulatory authorities on the market analysis, the Commission should consult [the Body of European Regulators for Electronic Communications (BEREC)] prior to adoption of its decisions and/or recommendations.’
Article 2(g) of the Framework Directive defines, for the purposes of that directive, ‘national regulatory authority’ (‘NRA’) as ‘the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive …’.
Article 4 of the Framework Directive, entitled ‘Right of appeal’, provides, in paragraphs 1 and 2:
‘1.   Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of [an NRA] has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism.
Pending the outcome of the appeal, the decision of the [NRA] shall stand, unless interim measures are granted in accordance with national law.’
2.   Where the appeal body referred to in paragraph 1 is not judicial in character, written reasons for its decision shall always be given. Furthermore, in such a case, its decision shall be subject to review by a court or tribunal within the meaning of Article [267 TFEU].’
Article 5 of the Framework Directive relates to the provision of information. It provides, in paragraph 2:
‘Member States shall ensure that [NRAs] provide the Commission, after a reasoned request, with the information necessary for it to carry out its tasks under the [FEU] Treaty. …
… Member States shall ensure that the information submitted to one [NRA] can be made available to another such authority in the same or different Member State, after a substantiated request, where necessary to allow either authority to fulfil its responsibilities under Community law.’
Article 6 of the Framework Directive relates to the ‘Consultation and transparency mechanism’. According to the first and second paragraphs of that article:
‘Except in cases falling within [Article] 7(9), … Member States shall ensure that, where [NRAs] intend to take measures in accordance with this Directive …, or where they intend to provide for restrictions … which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period.
[NRAs] shall publish their national consultation procedures.’
Article 7 of the Framework Directive, entitled ‘Consolidating the internal market for electronic communications’, is worded as follows:
‘1.   In carrying out their tasks under this Directive …, [NRAs] shall take the utmost account of the objectives set out in Article 8, including in so far as they relate to the functioning of the internal market.
2.   [NRAs] shall contribute to the development of the internal market by working with each other and with the Commission and BEREC in a transparent manner so as to ensure the consistent application, in all Member States, of the provisions of this Directive …
3.   Except where otherwise provided in recommendations or guidelines adopted pursuant to Article 7b upon completion of the consultation referred to in Article 6, where [an NRA] intends to take a measure which:
(a)
falls within the scope of Articles 15 or 16 of this Directive …; and
(b)
would affect trade between Member States,
it shall make the draft measure accessible to the Commission, BEREC, and the [NRAs] in other Member States, at the same time, together with the reasoning on which the measure is based, … and inform the Commission, BEREC and other [NRAs] thereof. [NRAs], BEREC and the Commission may make comments to the [NRA] concerned only within one month. The one-month period may not be extended.
4.   Where an intended measure covered by paragraph 3 aims at:
(a)
defining a relevant market which differs from those defined in the Recommendation in accordance with Article 15(1); or
(b)
deciding whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under Article 16(3), (4) or (5);
and would affect trade between Member States, and the Commission has indicated to the [NRA] that it considers that the draft measure would create a barrier to the single market or if it has serious doubts as to its compatibility with Community law and in particular the objectives referred to in Article 8, the draft measure shall not be adopted for a further two months. This period may not be extended. The Commission shall inform other [NRAs] of its reservations in such a case.
5.   Within the two-month period referred to in paragraph 4, the Commission may:
(a)
take a decision requiring the [NRA] concerned to withdraw the draft measure; and/or
(b)
take a decision to lift its reservations in relation to a draft measure referred to in paragraph 4.
The Commission shall take utmost account of the opinion of BEREC before issuing a decision. The decision shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not be adopted, together with specific proposals for amending the draft measure.
6.   Where the Commission has adopted a decision in accordance with paragraph 5, requiring the [NRA] to withdraw a draft measure, the [NRA] shall amend or withdraw the draft measure within six months of the date of the Commission’s decision. When the draft measure is amended, the [NRA] shall undertake a public consultation in accordance with the procedures referred to in Article 6, and shall re-notify the amended draft measure to the Commission in accordance with the provisions of paragraph 3.
7.   The [NRA] concerned shall take the utmost account of comments of other [NRAs], BEREC and the Commission and may, except in cases covered by paragraphs 4 and 5(a), adopt the resulting draft measure and, where it does so, shall communicate it to the Commission.
8.   The [NRA] shall communicate to the Commission and BEREC all adopted final measures which fall under Article 7(3)(a) and (b).
9.   In exceptional circumstances, where [an NRA] considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in paragraphs 3 and 4, it may immediately adopt proportionate and provisional measures. It shall, without delay, communicate those measures, with full reasons, to the Commission, the other [NRA], and BEREC. A decision by the [NRA] to render such measures permanent or extend the time for which they are applicable shall be subject to the provisions of paragraphs 3 and 4.’
Article 15 of the Framework Directive lays down the procedure for the identification and definition of markets, whereas Article 16 relates to the market analysis procedure.
Article 19 of the Framework Directive, entitled ‘Harmonisation procedures’, provides, in paragraphs 1 and 2:
‘1.   … where the Commission finds that divergences in the implementation by the [NRAs] of the regulatory tasks specified in this Directive … may create a barrier to the internal market, the Commission may, taking the utmost account of the opinion of BEREC, issue a recommendation or a decision on the harmonised application of the provisions in this Directive …
2.   …
Member States shall ensure that [NRAs] take the utmost account of those recommendations in carrying out their tasks. Where [an NRA] chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position.’
Background to the dispute
The background to the dispute, as set out in paragraphs 1 and 10 to 18 of the order under appeal, may be summarised as follows.
VodafoneZiggo is a company incorporated under Netherlands law which operates in the electronic communications sector in the Netherlands, providing fixed internet, television and telephony services by cable network.
On 27 February 2018, the ACM, the Netherlands NRA within the meaning of Article 2(g) of the Framework Directive, published, in accordance with Article 6 thereof, a draft measure for public consultation. This draft contained in particular an analysis of the wholesale fixed access market in the Netherlands. In it, the ACM found that some operators, including VodafoneZiggo, enjoyed significant joint market power in that market, and proposed that specific regulatory obligations be imposed on those operators in accordance with Article 16 of the Framework Directive. Interested parties were invited to submit comments on that draft measure by 10 April 2018. VodafoneZiggo submitted comments within the prescribed period.
On 31 July 2018, the ACM made the draft measure accessible to the Commission, BEREC and the NRAs in other Member States in accordance with Article 7(3) of the Framework Directive.
On 6 and 9 August 2018, the Commission requested further information pursuant to Article 5(2) of the Framework Directive from the ACM, which provided the Commission with the information.
On 8 August 2018, VodafoneZiggo submitted comments to the Commission concerning the draft measure.
On 30 August 2018, the Commission, pursuant to Article 7(3) of the Framework Directive, sent the act at issue containing its comments on that draft measure to the ACM.
On 27 September 2018, the ACM adopted its decision, which identifies certain operators, including VodafoneZiggo, as enjoying significant joint market power in the wholesale fixed access market in the Netherlands and imposes specific regulatory obligations on them. In Annex I to that decision, the ACM explains how it took account of the Commission’s comments.
Proceedings before the General Court and the order under appeal
By application lodged at the General Court Registry on 8 November 2018, VodafoneZiggo brought an action for annulment of the act at issue.
By separate document lodged at the General Court Registry on 23 January 2019, the Commission raised an objection of inadmissibility in respect of that action, claiming, in the first place, that the act at issue is not a challengeable act for the purposes of Article 263 TFEU, as it does not produce binding legal effects and constitutes, at most, a preparatory act that does not set out the Commission’s definitive position, and, in the second place, that VodafoneZiggo does not have standing to bring proceedings, for the purposes of the fourth paragraph of Article 263 TFEU, as the act at issue is not of direct concern to it.
By documents lodged at the General Court Registry on 1 and 27 February 2019, respectively, the Kingdom of the Netherlands, on the one hand, and T-Mobile Netherlands Holding BV, T-Mobile Netherlands BV, T-Mobile Thuis BV and Tele2 Nederland BV, on the other, applied for leave to intervene in the proceedings in support of the form of order sought by the Commission.
By the order under appeal, the General Court held that the act at issue does not produce any binding legal effects and is preparatory in nature and, therefore, is not a measure which may be the subject of an action under Article 263 TFEU.
In that regard, the General Court first of all examined the context in which that act had been adopted. It found, first, that the requirement that the NRA concerned ‘take the utmost account’ of the comments made by the Commission under Article 7(3) of the Framework Directive does not mean that the act at issue produces binding legal effects; second, that that act does not amount to authorisation which would have enabled the ACM to adopt its draft measure and would thereby produce such effects; and, third, that that act had not affected VodafoneZiggo’s procedural rights. The General Court then examined the content of the act at issue and considered that it could not be concluded either from its wording or from the subject matter of the comments set out in it that the Commission had sought to impose legally binding obligations by adopting it. Last, the General Court held that that act was preparatory in nature and that VodafoneZiggo’s arguments based on the right to effective judicial protection were not such as to set aside the conditions governing admissibility laid down in Article 263 TFEU.
The General Court therefore dismissed the action brought by VodafoneZiggo as being inadmissible, and considered that it was not necessary either to examine VodafoneZiggo’s standing to bring proceedings or to rule on the applications to intervene.
Forms of order sought before the Court of Justice
By its appeal, VodafoneZiggo asks the Court of Justice to set aside the order under appeal, to refer the case back to the General Court and to reserve the costs relating to the appeal.
The Commission contends that the Court should dismiss the appeal and order VodafoneZiggo to pay the costs.
The appeal
VodafoneZiggo puts forward three grounds of appeal.
The first ground of appeal
By its first ground of appeal, VodafoneZiggo submits that the General Court erred in law in concluding that the act at issue did not produce binding legal effects. It divides this ground of appeal into five limbs.
The first limb of the first ground of appeal
–
Arguments of the parties
By the first limb of its first ground of appeal, VodafoneZiggo claims that the need for NRAs to ‘take the utmost account’ of the Commission’s comments, as provided for in Article 7(7) of the Framework Directive, imposes a binding legal obligation on them, contrary to the General Court’s finding in paragraph 54 of the order under appeal.
First, according to VodafoneZiggo, in paragraphs 41 to 44 of that order, the General Court presented the scope of the judgment of 15 September 2016, Koninklijke KPN and Others (
C‑28/15
,
EU:C:2016:692
) incorrectly, paragraphs 37 and 38 of that judgment having actually established that the words ‘take the utmost account’ mean that, as a rule, the NRAs must follow that which must be taken utmost account of. Furthermore, the way in which an NRA must ‘take the utmost account’ of Commission decisions taken pursuant to Article 7(3) of the Framework Directive had been presented incorrectly, since that obligation covers all of the language employed as well as the act as a whole. In the present case, by instructing the ACM to improve its analysis in order to meet the requirement of functional equivalence, the Commission had directed the NRA to take specific action, thereby seeking to restrict its options and, therefore, to give the act at issue binding legal effect.
Second, it follows from paragraph 41 of the judgment of 11 September 2003, Altair Chimica (
C‑207/01
,
EU:C:2003:451
), and from paragraph 59 of the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (
C‑626/15 and C‑659/16
,
EU:C:2018:925
), that legal effect may also be imputed to a measure even when the measure in question is not intended to produce such an effect, and that any kind of legal effect suffices to render an action admissible. Paragraphs 45 to 50 of the order under appeal are therefore incorrect in law.
The act at issue produces a substantive legal effect consisting in the fact that NRAs must ‘take the utmost account’ of the Commission’s comments. The General Court confirmed, however, in paragraph 47 of the order under appeal, that such an effect must be distinguished from binding legal effects, within the meaning of the case-law on the admissibility of actions for annulment, in that that phrase merely imposes an obligation to state reasons, and by finding, in paragraph 50 of that order, that such an obligation is not capable of affecting the interests of VodafoneZiggo. This is contradictory, given that the obligation to state reasons entails a legal effect. The existence of substantive legal effect is also said to be confirmed by the fact that the Commission adopted a Recommendation pursuant to Article 19 of the Framework Directive – Commission Recommendation 2008/850/EC of 15 October 2008 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21 (
OJ 2008 L 301, p. 23
) – which requires NRAs to indicate the manner in which they took the utmost account of the comments made by the Commission pursuant to Article 7 of the Framework Directive.
Third, the General Court was wrong to state, in paragraph 52 of the order under appeal, that the EU legislature expressly determined the legal effects which it wished to attribute to observations made under Article 7(3) of the Framework Directive. That provision does not expressly state anything regarding legal effects and even if the General Court intended to point to paragraph 7 of that article, its reasoning is circular. In addition, the judgment of 16 April 2015, Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog (
C‑3/14
,
EU:C:2015:232
) and recital 15 of the Framework Directive established that NRAs are not freely able to disregard the comments issued by the Commission, as these are made to safeguard the objectives of the European Union. Such comments therefore produce binding legal effects.
Fourth, contrary to the General Court’s finding in paragraph 53 of the order under appeal, the national judgment invoked by VodafoneZiggo indicates that the need to take the Commission’s comments into account has the effect of predetermining the margin of discretion which the NRA would otherwise have. It therefore sets out the actual effects of a Commission act adopted pursuant to Article 7(3) of the Framework Directive.
The Commission contends that that first limb is, in part, inadmissible and, in part, unfounded.
–
Findings of the Court
As regards, in the first place, the complaint in respect of paragraphs 41 to 44 of the order under appeal, it should be noted that, in the judgment of 15 September 2016, Koninklijke KPN and Others (
C‑28/15
,
EU:C:2016:692
), the Court of Justice was, in essence, asked about the ability, for a national court hearing a dispute concerning the legality of a tariff obligation imposed by an NRA, to depart from a Commission recommendation, within the meaning of Article 288 TFEU, advocating the use of a certain cost-calculation model as the appropriate price regulation measure in the termination market.
In that context, having noted in paragraph 37 of that judgment that Article 19(2) of the Framework Directive requires NRAs, in carrying out their duties, to ‘take the utmost account’ of the Commission recommendations, the Court inferred from this, in paragraph 38 of that judgment, that ‘accordingly, it is for the NRA, when imposing obligations [in accordance with the applicable regulatory framework] to follow, as a rule, the guidance contained in [that] Recommendation’ and that ‘it is only where it appears to the NRA, in its assessment of a given situation, that the [cost-calculation] model advocated by [that] recommendation is not appropriate to the circumstances that it may depart from it, giving reasons for its position’. In paragraph 34 of that judgment, the Court had recalled that, in accordance with Article 288 TFEU, a recommendation ‘is, on principle, not legally binding’ and that, ‘moreover, the second subparagraph of Article 19(2) of the Framework Directive explicitly allows an NRA to depart from the Commission recommendations adopted on the basis of Article 19(1) of the Framework Directive, provided they inform the Commission and give it the reasons for their position’. It had concluded from this, in paragraph 35 of the judgment, that ‘the NRA, upon adoption of a decision by which it imposes tariff obligations on operators … is not bound by [the Recommendation in question]’.
First, as is apparent from the preceding paragraph of the present judgment, it does not at all follow from the judgment of 15 September 2016, Koninklijke KPN and Others (
C‑28/15
,
EU:C:2016:692
), that, as VodafoneZiggo claims, the Court ruled in that case that the requirement to ‘take the utmost account’ of an act of the Commission implies that the NRA is under an obligation to comply with the substance of that act, paragraph 38 of that judgment having explicitly established the contrary, nor does it follow that the comments communicated by the Commission to an NRA pursuant to Article 7(3) of the Framework Directive are binding on the NRA.
Second, it is precisely the points mentioned in paragraph 37 of the present judgment that were recalled by the General Court in the disputed paragraphs of the order under appeal, and in particular in paragraphs 41 and 42 of that order, which therefore correctly reflects the scope of the judgment of 15 September 2016, Koninklijke KPN and Others (
C‑28/15
,
EU:C:2016:692
).
Third, the General Court also recalled, in paragraph 43 of the order under appeal, the lesson to be drawn from paragraph 26 of the judgment of 20 February 2018, Belgium v Commission (
C‑16/16 P
,
EU:C:2018:79
), according to which, ‘by establishing recommendations as a specific category of EU acts and by stating expressly that they “have no binding force”, Article 288 TFEU intended to confer on the institutions which usually adopt recommendations a power to exhort and to persuade, distinct from the power to adopt acts having binding force’, and held that that finding ‘also applies, by analogy, to the comments made by the Commission … under Article 7(3) of the Framework Directive, such as those set out in the [act at issue]’. However, VodafoneZiggo does not dispute the application by analogy, to the act at issue, of that case-law concerning a recommendation within the meaning of Article 288 TFEU.
In those circumstances, the arguments to the effect that the General Court misconstrued the scope of the judgment of 15 September 2016, Koninklijke KPN and Others (
C‑28/15
,
EU:C:2016:692
), cannot be upheld.
Moreover, in so far as, by that first complaint, VodafoneZiggo takes issue with paragraphs 41 to 44 of the order under appeal on the ground that the General Court should have found that the act at issue contains precise instructions for the ACM, demonstrating that the Commission was seeking to give it binding legal effect, it must be noted that, in those paragraphs, the General Court did not analyse the content of that act – that analysis being set out in paragraphs 88 to 96 of the order under appeal – but confined itself to explaining, in abstract terms and without referring to its content, how the phrase ‘take the utmost account’ used in Article 7(7) of the Framework Directive highlights the non-binding character of the Commission’s comments under Article 7(3) of the Framework Directive.
However, VodafoneZiggo does not rely on any error of law that may have been made by the General Court in that respect, other than that which has already been ruled out in paragraphs 36 to 41 of the present judgment. This argument must, therefore, in any event be rejected for the same reasons as those set out in those paragraphs, without there being any need to rule on its admissibility, which is contested by the Commission.
The first complaint of the present limb is, consequently, unfounded.
As regards, in the second place, the complaint in respect of paragraphs 45 to 50 of the order under appeal, it must be noted that the General Court stated, in paragraph 46 of the order under appeal, that ‘the effects at issue in [the judgment of 11 September 2003, Altair Chimica (
C‑207/01
,
EU:C:2003:451
),] must be distinguished from binding legal effects, as alleged by [VodafoneZiggo], capable of affecting an applicant’s interests by bringing about a distinct change in its legal position’. It added, in paragraph 47 of that order, that ‘the requirement to take “the utmost account” has a legal effect which differs from the effects alleged by [VodafoneZiggo], in that that requirement imposes an obligation to state reasons’, and, in paragraph 50 of the order under appeal, that, ‘in any event, an obligation to state reasons, incumbent on NRAs, would not be capable of affecting the interests of [VodafoneZiggo] by bringing about a distinct change in its legal position’.
Since VodafoneZiggo maintains in essence that, in ruling in this way, the General Court wrongly assessed the criterion of legal effect enabling the remedy laid down in Article 263 TFEU to be made available, it should be borne in mind that, according to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as challengeable acts, for the purposes of Article 263 TFEU (judgments of 13 October 2011, Deutsche Post and Germany v Commission,
C‑463/10 P and C‑475/10 P
,
EU:C:2011:656
, paragraph
and the case-law cited; of 20 February 2018, Belgium v Commission,
C‑16/16 P
,
EU:C:2018:79
, paragraph
; and of 9 July 2020, Czech Republic v Commission,
C‑575/18 P
,
EU:C:2020:530
, paragraph
).
Those binding legal effects must be assessed on the basis of objective criteria, such as the content of the act in question, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgments of 13 February 2014, Hungary vCommission,
C‑31/13 P
,
EU:C:2014:70
, paragraph
and the case-law cited; of 20 February 2018, Belgium v Commission,
C‑16/16 P
,
EU:C:2018:79
, paragraph
; and of 9 July 2020, Czech Republic v Commission,
C‑575/18 P
,
EU:C:2020:530
, paragraph
).
However, where the action for annulment is brought by a natural or legal person against an act adopted by an institution, it is available only if the binding legal effects of the act being challenged are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, in particular, judgments of 11 November 1981, IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
, and of 18 November 2010, NDSHT v Commission,
C‑322/09 P
,
EU:C:2010:701
, paragraph
and the case-law cited).
In the present case, as is apparent in particular from paragraphs 120 and 121 of the order under appeal, the General Court upheld the objection of inadmissibility raised by the Commission by accepting the first ground of inadmissibility on which it had relied, according to which the act at issue is not a challengeable act and is preparatory in nature, for the purposes of Article 263 TFEU, since it does not produce any binding legal effects.
Even if, as VodafoneZiggo claims, the General Court should have confined itself, in the contested paragraphs of the order under appeal, to assessing whether the act at issue produced binding legal effects, without referring to the question whether such effects would be capable of affecting its interests by bringing about a distinct change in its legal position, it is sufficient to note that, in any event, the General Court did in fact base that finding on the case-law cited in paragraph 47 of the present judgment and recalled, furthermore, in paragraph 29 of the order under appeal. In that regard, it must be held that the arguments put forward by VodafoneZiggo do not support a finding that the General Court erred in law or contradicted itself by concluding, in paragraph 54 of the order under appeal, that the requirement that the NRA concerned must ‘take the utmost account’ of the comments made by the Commission under Article 7(3) of the Framework Directive does not mean that the act at issue produces binding legal effects.
It is true that, in paragraph 41 of the judgment of 11 September 2003, Altair Chimica (
C‑207/01
,
EU:C:2003:451
), the Court of Justice recalled the settled case-law resulting from the judgment of 13 December 1989, Grimaldi (
C‑322/88
,
EU:C:1989:646
), according to which, even if recommendations are not intended to produce binding legal effects and are not capable of creating rights that individuals can rely on before a national court, they are not without any legal effect, the national courts being bound to take them into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions.
Furthermore, as VodafoneZiggo also points out, in paragraph 59 of the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (
C‑626/15 and C‑659/16
,
EU:C:2018:925
), the Court stated that ‘any decision adopted by an institution, office, body or agency of the European Union, irrespective of its nature or form, which is intended to have legal effects constitutes a challengeable act for the purposes of Article 263 TFEU’.
It cannot however be inferred from those judgments that, as VodafoneZiggo claims, any legal effect produced by an EU act – even if that act is not intended to produce a legal effect and even if the effect produced is not binding – is sufficient to permit the inference that it is a challengeable act for the purposes of Article 263 TFEU, and that the General Court consequently erred in law by failing to recognise this in the contested paragraphs of the order under appeal.
First, while the national courts are, in accordance with the case-law recalled in paragraph 51 of the present judgment, bound to take recommendations, within the meaning of Article 288 TFEU, into consideration in order to decide disputes submitted to them, it is not apparent from that case-law that, as the General Court, in essence, noted in paragraph 46 of the order under appeal, the Court of Justice ruled that such effects are those which enable an act to be described as ‘challengeable’, for the purposes of Article 263 TFEU. On the contrary, as has already been pointed out in paragraph 37 of the present judgment, it follows from that settled case-law of the Court of Justice that that type of act is not, on principle, legally binding. No reasonable argument to support VodafoneZiggo’s position as regards the legal effects allegedly produced by the act at issue can therefore be derived from this.
It must, moreover, be noted that the obligation for NRAs to state reasons for their position in relation to the comments communicated to them by the Commission pursuant to Article 7(3) of the Framework Directive, established by the General Court in particular in paragraph 47 of the order under appeal and which is not disputed by VodafoneZiggo in this appeal, illustrates, contrary to VodafoneZiggo’s contention, that no binding legal effect, for the purposes of Article 263 TFEU, is produced by such comments.
Second, as regards the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (
C‑626/15 and C‑659/16
,
EU:C:2018:925
), it cannot be concluded that, in paragraph 59 of that judgment, the Court ruled that the requirement that a given act must have ‘a legal effect’ in order for it to be capable of being the subject matter of an action under Article 263 TFEU relates to any legal effect, irrespective of its nature, and that it thus contradicted its settled case-law concerning the concept of ‘challengeable act’ for the purposes of Article 263 TFEU, as recalled in paragraphs 46 and 47 of the present judgment.
In fact, the Court held in paragraph 63 of that judgment that ‘the 2015 decision [at issue in the case that gave rise to that judgment] … [had been] adopted with a view to persuading the [Commission for the Conservation of Antarctic Marine Living Resources (‘the CCAMLR’)] to establish [a Marine Protected Area] in the Weddell Sea’; in paragraph 64 of the judgment, that, ‘in deciding that the reflection paper was to be submitted [to the CCAMLR] on behalf of the European Union and its Member States, [the Committee of Permanent Representatives (Coreper)] obliged the Commission not to depart from that position in the exercise of its power to represent the European Union externally’; and, in paragraph 65 of that judgment, that ‘it [was] apparent from the minutes of the Coreper meeting … that [that] decision had the objective of establishing definitively the Council’s and, accordingly, the European Union’s position so far as concerns submission of the reflection paper … on behalf of the European Union and its Member States, and not on behalf of the European Union alone’. On the basis of these points, the Court concluded in paragraph 66 of that judgment that ‘[that] decision was thus indeed intended to produce legal effects and is therefore a challengeable act’.
It must be held that those effects, which relate to the context in which the measure at issue in Case C‑626/15 was adopted, to its content and to its author’s intention, all establish the binding nature, for the substantive position to be adopted by the Commission, of the effects produced by the decision whose annulment was sought.
In the light of those points, VodafoneZiggo’s complaint, as set out in paragraphs 31 and 32 of the present judgment, must be rejected.
As regards, in the third place, the complaint raised in respect of paragraph 52 of the order under appeal, it must be noted that, as VodafoneZiggo indicates, the General Court stated in that paragraph that ‘since the EU legislature expressly determined the legal effects which it wished to attribute to observations made under Article 7(3) of the Framework Directive, the duty of sincere cooperation cannot have a greater scope by attributing legal effects not intended by the legislature’. However, that sentence begins with the word ‘furthermore’ and, in the same paragraph, the General Court principally found that the duty of sincere cooperation cannot lead to comments made by the Commission pursuant to Article 7(3) of the Framework Directive having binding legal effects, referring in that respect to paragraph 40 of the judgment of 20 February 2018, Belgium v Commission,
C‑16/16 P
,
EU:C:2018:79
).
The Court actually ruled, in paragraph 40 of that judgment, that the principle of sincere cooperation cannot have the effect of setting aside the conditions governing admissibility expressly laid down in Article 263 TFEU. It must be noted that the reminder of that case-law was sufficient, per se, to justify the General Court’s rejection of the arguments that had been put to it by VodafoneZiggo, according to which, in essence, the act at issue had to be acknowledged as having a binding legal nature since, according to that company, the NRAs cannot, in view of the judgment of 16 April 2015, Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog (
C‑3/14
,
EU:C:2015:232
), and recital 15 of the Framework Directive, ignore the comments made by the Commission under Article 7(3) of the Framework Directive without running the risk of breaching the principle of sincere cooperation provided for in Article 4(3) TEU.
VodafoneZiggo’s complaint as set out in paragraph 33 of the present judgment must, therefore, be rejected, since complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission,
C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P
,
EU:C:2005:408
, paragraph
, and of 13 December 2018, European Union v Gascogne Sack Deutschland and Gascogne,
C‑138/17 P and C‑146/17 P
,
EU:C:2018:1013
, paragraph
).
As regards, in the fourth place, the complaint that the national case-law which VodafoneZiggo invoked before the General Court should have led to the General Court finding that an act such as the act at issue produces binding legal effects, it is sufficient to recall that, as the General Court correctly noted in paragraph 53 of the order under appeal, it follows from the need for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation of which it forms part (judgments of 8 September 2020, Recorded Artists Actors Performers,
C‑265/19
,
EU:C:2020:677
, paragraph
and the case-law cited, and of 8 October 2020, Crown Van Gelder,
C‑360/19
,
EU:C:2020:805
, paragraph
).
However, VodafoneZiggo does not contest that case-law but merely criticises the assessment made, for the sake of completeness, by the General Court in paragraph 53 of the order under appeal, according to which, ‘in any event, it cannot be concluded from the extract cited by [VodafoneZiggo] that the Bundesverwaltungsgericht (Federal Administrative Court[, Germany]) held that the Commission’s comments produced binding legal effects within the meaning of the first paragraph of Article 263 TFEU’. Consequently, even on the assumption that it is admissible, that fourth complaint must in any event be rejected as being ineffective, in accordance with the case-law recalled in paragraph 62 of the present judgment.
It follows from the foregoing that the first limb of the first ground of appeal must be rejected in its entirety.
The second limb of the first ground of appeal
–
Arguments of the parties
By the second limb of its first ground of appeal, VodafoneZiggo submits that the act at issue amounts to an authorisation by the Commission and therefore produces binding legal effects. As the acts referred to respectively in Article 7(3) and 7(4) of the Framework Directive are mutually exclusive, and the Commission thus faces a binary choice between issuing either a veto decision under Article 7(4) or a non-veto decision under Article 7(3) or 7(4) in respect of the draft measure communicated, issuing comments in accordance with Article 7(3) is inherently equivalent to the adoption of a decision not to veto. Consequently, as a result of that binary choice, a decision adopted under Article 7(3) of the Framework Directive, such as the act at issue, can only be interpreted as a decision authorising the draft measure. According to VodafoneZiggo, the General Court is mistaken in that respect in paragraphs 57, 58 and 63 of the order under appeal.
In the first place, according to VodafoneZiggo, it is undisputed that an NRA cannot adopt a measure in the absence of a decision of the Commission pursuant to Article 7(3) or 7(4) of the Framework Directive by means of which the Commission closes the procedure at EU level without issuing a veto and, moreover, that after having adopted such a decision, the Commission can no longer alter its position. Consequently, by making comments pursuant to Article 7(3) of the Framework Directive, the Commission eliminates every opportunity to veto the draft measure notified by the NRA, which is therefore no longer legally precluded from adopting the measure notified. That NRA is thus authorised to adopt the measure. Although there are two moments in time, during the procedure initiated under Article 7 of the Framework Directive at EU level, at which the Commission could choose to use or not to use its right of veto, the moment when that choice is made matters little, as the result is the same in both cases: the Commission authorises the measure concerned. No other option is identified by the General Court.
VodafoneZiggo adds, in its reply, that the Commission’s argument that it is not required to act in relation to draft measures that are notified to it pursuant to Article 7 of the Framework Directive and that it participates voluntarily in the consultation process laid down in that article is incorrect. According to recital 15 of the Framework Directive, Article 7 gives that institution a particular responsibility for ensuring that decisions taken at national level do not have an adverse effect on the single market or other objectives of the FEU Treaty, a role which is also highlighted by recital 19 of Directive 2009/140. That argument is therefore irreconcilable with the system laid down by the Framework Directive and, accordingly, with the Commission’s duty of sincere cooperation under Article 4(3) TEU.
In any event, according to VodafoneZiggo, any hypothetical inaction on the part of the Commission would entail a decision not to exercise the right of veto conferred by the Framework Directive, which would be open to challenge. Furthermore, as letting the one-month period provided for by Article 7(3) of the Framework Directive lapse is an alternative method of lifting the standstill obligation by which NRAs are bound, it is equally authorising in nature and in effect. It is also wrong to maintain that NRAs have ‘full powers’ to adopt their draft measures. They are at the very minimum forced to wait until that period has expired. The powers of NRAs are already constrained by the very existence of Article 7 of the Framework Directive and the powers which it provides for the Commission.
In the second place, from the perspective of an NRA, it is evident that the Commission must authorise the measures, since Article 7 of the Framework Directive provides that NRAs are not permitted to adopt measures without prior notification to the Commission and that those measures may not be adopted while they are being investigated by the Commission. There are only two scenarios in which the NRA is permitted to adopt the measure notified, and both are entirely contingent on the Commission’s decision not to use its right of veto, whether that decision is adopted under Article 7(3) or 7(4). Practice also confirms that all decisions finally adopted by NRAs were notified to the Commission and not subjected to a veto, whereas all notified decisions that were subjected to a veto were adjusted or abandoned by the NRAs. This establishes that, from the point of view of an NRA, the Commission’s authorisation is required.
The Commission contends that this limb is unfounded.
–
Findings of the Court
As regards, in the first place, the first complaint of the present limb, it should be noted that the General Court indicated, in paragraph 57 of the order under appeal that, ‘while it is true that the notification of comments and the opening of the second phase of the European consultation procedure amount to one option, there is no question, contrary to what [VodafoneZiggo] claims, of a binary choice between vetoing or not vetoing the draft measure notified by the NRA’. In paragraph 58 of the order under appeal, the General Court added that ‘the fact that the Commission does not exercise its right of veto can be regarded as equivalent to it not having adopted a decision, so that that position does not give rise to any binding legal effect’. In paragraph 63 of that order, it concluded that ‘the [act at issue] does not amount to authorisation which would have enabled the ACM to adopt its draft measure and would thereby produce binding legal effects’.
In that regard, it should further be noted that the General Court also applied that conclusion to the finding, in paragraph 59 of the order under appeal, that ‘the NRA concerned derives its powers directly from the relevant provisions of the Framework Directive’ and that ‘their exercise does not require any authorisation from the Commission’, as well as to the finding, in paragraph 62 of that order, that ‘it is true that the European consultation procedure is a mandatory step in the process for adopting measures covered [in particular] by Articles 15 or 16 of the Framework Directive … which affect trade between the Member States’, but that ‘that fact is not sufficient for it to be held that comments made under Article 7(3) of the Framework Directive produce binding legal effects[,] [since] any failure to comply with that mandatory step would have different effects[, such as] … an action for failure to fulfil obligations before the EU judicature or an action against the measures adopted by the NRA before the national courts’.
By that first complaint VodafoneZiggo claims in essence that the General Court erred in law in those paragraphs of the order under appeal by failing to acknowledge that the Commission’s communication to an NRA of comments under Article 7(3) of the Framework Directive is equivalent to the non-adoption of a decision to veto the draft measure notified as provided for in paragraph 5(a) of that article, and, therefore, amounts to a decision authorising the draft measure, entailing binding legal effects, whereas the Commission necessarily has to adopt a measure under paragraph 3 or paragraph 5(a) of Article 7 in order to close the ongoing procedure before it and thus enable the NRA to adopt the measure in question.
In order to assess whether this complaint is well founded, it is necessary therefore to begin by establishing whether the underlying premiss, that an NRA cannot adopt the draft measure which it has made accessible to the Commission, BEREC and the NRAs in other Member States under the procedure laid down in Article 7 of the Framework Directive without the Commission’s authorisation, is correct. In that regard, it must be noted that this reading of the Framework Directive, defended by VodafoneZiggo, implies that the Commission necessarily has to act on a notification made under Article 7(3) of the Framework Directive. It is appropriate therefore to consider what that article, which concerns the consolidation of the internal market for electronic communications, provides.
In that respect, it must be noted that it follows from the provisions of Article 7 of the Framework Directive that, first, the procedure established in that article does not consist, as VodafoneZiggo maintains, in the combination of two separate procedures, one taking place at national level and the other at EU level, but consists in a single and unique consultation and cooperation procedure, which takes place, moreover, not only between the NRA that notified the draft measure and the Commission, but between that NRA, the Commission, and the NRAs in other Member States and BEREC. Furthermore, it is apparent that that procedure is triggered when the NRA makes available a draft measure meeting the criteria laid down in Article 7(3)(a) and (b), and is concluded either by the adoption of the draft measure originally communicated, or by the adoption of a modified draft measure – which will previously have been resubmitted to the national consultation and transparency mechanism provided for in Article 6 of the Framework Directive, then notified as provided for in Article 7(3) – or by the withdrawal of the draft, each of those decisions falling within the exclusive competence of the NRA concerned.
It is also and above all apparent from this that while, as the General Court correctly held in paragraph 62 of the order under appeal, an NRA must implement the procedure laid down in Article 7 of the Framework Directive if it envisages adopting a measure that meets the criteria set out in Article 7(3)(a) and (b), a reading of paragraph 3 in conjunction with paragraph 7 of Article 7 establishes unequivocally that the Commission is not in every instance under an obligation to make comments to the NRA under Article 7(3) of the Framework Directive, and that if no comments have been made by the Commission at the end of the one-month period provided for in Article 7(3), the NRA concerned is justified in adopting the draft measure in question.
Consequently, contrary to VodafoneZiggo’s contention, the Framework Directive does not establish that NRAs are not permitted to adopt the draft measure notified until the Commission has expressed a view under the latter provision and that, accordingly, the Commission is required to act in response to a notification given by an NRA in accordance with that provision.
Furthermore, it must be noted, first of all, that neither recital 15 of the Framework Directive nor recital 19 of Directive 2009/140 permits the inference that, notwithstanding the absence of a provision to that effect in the Framework Directive, the Commission is obliged to take action under Article 7(3) of the Framework Directive.
It follows from this that it is not possible to identify any contradiction with the principle of sincere cooperation.
Next, as regards the claim that the mere fact that the Commission let the period provided for in Article 7(3) of the Framework Directive elapse without communicating any comments in itself amounts to authorisation for the NRA to adopt the draft measure in question, it is sufficient to note that that is also based on the premiss that the Commission’s authorisation is necessary in order for the NRA to be able to adopt the draft measure in question, which is not supported by the Framework Directive.
With regard, last, to the argument that the very existence of the procedure established in Article 7 of the Framework Directive constrains NRAs’ powers, it is sufficient to point out that it cannot, in any event, establish that the General Court erred in law in its assessment of the respective roles assigned to and powers conferred on NRAs and the Commission by that provision and, therefore, as regards its conclusion that a letter of comment sent by the Commission to an NRA under Article 7(3) of the Framework Directive does not constitute authorisation of the draft measure in question.
The first complaint of the second limb of the first ground of appeal is therefore based on an incorrect premiss and must be rejected as being unfounded.
In the second place, in so far as VodafoneZiggo maintains, by the complaint set out in paragraph 70 of the present judgment, that in any event, from the perspective of NRAs, it is evident that the Commission must authorise draft measures, and therefore that, in fact, comments communicated under Article 7(3) of the Framework Directive have the binding legal effects of an authorising decision, it should be noted that that complaint, like the first, conflicts with the nature of the procedure established in Article 7, which, as is apparent from the analysis of the first complaint of this limb, does not constitute an authorisation procedure.
Moreover, the practice on which VodafoneZiggo relies simply reflects the NRAs’ careful observance of the time limits and rules laid down in Article 7 of the Framework Directive and does not therefore establish any obligation on the part of the Commission to act under Article 7(3) of the Framework Directive or to authorise the draft measure notified.
This second complaint is accordingly also unfounded and the second limb of the first ground of appeal must therefore be rejected.
The third limb of the first ground of appeal
–
Arguments of the parties
By the third limb of its first ground of appeal, VodafoneZiggo claims that the General Court erred in law by classifying the act at issue as a ‘preparatory act’. First of all, contrary to the findings in paragraphs 107 and 108 of the order under appeal, it maintains that there are two distinct administrative processes, that is to say, one at EU level, which is initiated by notification pursuant to Article 7(3) of the Framework Directive and terminated by the Commission’s adoption of a decision under Article 7(3) or (4), and the other at national level, governed by national law. Although completion of the EU-level administrative process is, according to VodafoneZiggo, a legal requirement for the purposes of the national process, the EU-level process is distinct from the national-level process. Both processes are governed by different laws, the primary actors are different and the act terminating the EU-level process constitutes a final position of the Commission as primary actor of that process. Consequently, the criterion derived from the judgments of 11 November 1981, IBM v Commission (
60/81
,
EU:C:1981:264
), and of 22 June 2000, Netherlands v Commission (
C‑147/96
,
EU:C:2000:335
), is satisfied, in so far as, by refusing to engage in a Phase II investigation in accordance with Article 7(4), the Commission takes a definitive position terminating the EU-level process and authorising the ACM to proceed with the adoption of the measure.
Next, paragraphs 109 and 111 of the order under appeal are incorrect in law in so far as the General Court states that the regulatory framework applicable does not aim to establish a division between two powers but vests exclusive decision-making power in the NRAs, a power which is qualified only by the Commission’s right of veto. That right of veto ensures that the Commission may exercise control over every market definition and over every market analysis procedure pursuant to Articles 15 and 16 of the Framework Directive. NRAs are therefore curtailed in their decision-making, as they must draft their measures in such a way that they will not be subjected to such a veto. The question whether the Commission made use of its veto power in the present case is irrelevant, as it is the very existence of this power that results in a division of two powers and separation of two administrative processes.
Last, in paragraph 112 of the order under appeal, the General Court was wrong to find that in order for the decision-making process provided for by the Framework Directive to be effective, there must necessarily be a single judicial review, which is conducted only once the measures envisaged by the NRA have been adopted. The consequence of the inadmissibility of the action for annulment brought in respect of a letter of comment under Article 7(3) of the Framework Directive is that all judicial review is prevented. As demonstrated in the context of the third ground of appeal, by removing the Commission’s decision not to exercise its veto from judicial review, the decision can quite simply not be scrutinised, which undermines the objective sought by the General Court in that the decision-making process thus becomes less effective.
The Commission contends that this limb is unfounded.
–
Findings of the Court
As regards the first and second complaints of the present limb, which are directed against paragraphs 107 to 109 and 111 of the order under appeal, it must be noted that VodafoneZiggo bases them on the premiss that the procedure established in Article 7 of the Framework Directive can be broken down into two separate administrative processes, one of which is the process of authorising the draft measure notified, which operates at EU level and is controlled by the Commission.
It follows, however, from the analysis of the second limb of the present ground of appeal that that premiss is incorrect.
As regards the third complaint of the present limb, by which VodafoneZiggo criticises paragraph 112 of the order under appeal, it must be noted that VodafoneZiggo refers in support of this complaint to the arguments advanced in its third ground of appeal.
In the light of the foregoing, the first two complaints of the present limb must be rejected as being unfounded and, as regards the third complaint, reference must be made to the analysis in paragraphs 136 to 154 of the present judgment.
The fourth limb of the first ground of appeal
–
Arguments of the parties
By the fourth limb of its first ground of appeal, VodafoneZiggo submits that the General Court erred in law in so far as it departed, in paragraph 88 of the order under appeal, from the description given to the act at issue by the Commission, by stating that the use of the term ‘decision’ in the title of the subject heading of the act at issue is inappropriate. That act was intended, styled and formatted to be a decision and thus to have legal effects, as is clear from its title and from the document code ‘C’. By changing the description given by the institution itself to a position it takes, the General Court exceeded its competence in respect of judicial review. The public register, maintained by the Commission, of documents relating to Articles 7 and 7a of the Framework Directive shows, moreover, that the Commission has consistently classified letters sent pursuant to Article 7(3) as ‘decisions’. There is in any event no indication that the Commission considered the use of the word ‘decision’ to have been inappropriate, which should be all that is relevant for the purpose of assessing the Commission’s intentions regarding the legal effects of the act at issue.
The Commission contends that this limb must be rejected as being unfounded.
–
Findings of the Court
According to the settled case-law of the Court, in order to determine whether a particular act constitutes a ‘challengeable act’ for the purposes of Article 263 TFEU, it is necessary to look to the actual substance of that act, the form in which it was adopted being, in principle, irrelevant in that respect. It is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements or whether or not it is described as a ‘decision’ (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission,
C‑521/06 P
,
EU:C:2008:422
, paragraphs
and
and the case-law cited, and of 18 November 2010, NDSHT v Commission,
C‑322/09 P
,
EU:C:2010:701
, paragraph
).
By contrast, in accordance with the case-law cited above in paragraphs 46 and 47 of the present judgment, any measures adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as challengeable acts, for the purposes of Article 263 TFEU; those effects must be assessed on the basis of objective criteria, such as the content of the act in question, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted it.
In the present case, in paragraph 88 of the order under appeal, the General Court, as VodafoneZiggo indicates, actually stated that the term ‘decision’ was used ‘in the title of the subject heading of the [act at issue]’, while nevertheless taking the view that this was an ‘inappropriate use of the term’. However, it is apparent from the case-law recalled in the preceding paragraph of the present judgment that that title – which appears, moreover, as the General Court noted in the same paragraph, only in the subject heading of the act at issue, which also stated that these were ‘comments pursuant to Article 7(3) of [the Framework Directive]’ – was not definitive when assessing whether the act at issue could be classified as a ‘challengeable act’ for the purposes of Article 263 TFEU. Accordingly, the General Court did not err in law when, in its analysis of the content of the act at issue, in paragraphs 86 to 105 of the order under appeal, it essentially rejected the term used in the title of the subject heading of that act and relied on the substance of the act in order to support its conclusion that the act did not have binding legal effects.
The fourth limb of the first ground of appeal must, therefore, be rejected.
The fifth limb of the first ground of appeal
–
Arguments of the parties
By the fifth limb of its first ground of appeal, VodafoneZiggo submits that, in paragraph 104 of the order under appeal, the General Court failed to justify its statement that the subject matter of the act at issue is ‘irrelevant to the legal effects’. In order to determine whether an act has legal effects, its substance and content must, inter alia, be examined. Clear legal effects result from authorisation of a measure that is indisputably contrary to the applicable legal framework, such as that envisaged by the ACM in the present case, and this is even more so than in the case of a measure that relates to less fundamental substance, such as that at issue in the case that gave rise to the order of the General Court of 12 December 2007, Vodafone España and Vodafone Group v Commission (
T‑109/06
,
EU:T:2007:384
).
The Commission contends that this limb is unfounded.
–
Findings of the Court
In paragraph 104 of the order under appeal, the General Court stated that, ‘in the third place and in any event, the Court notes that the difference in the subject matter of the Commission’s comments and departures from the guidance documents, put forward by [VodafoneZiggo], are irrelevant to the legal effects of comments notified to an NRA under Article 7(3) of the Framework Directive’.
This paragraph is in the part of the order under appeal, set out in paragraphs 97 to 105 thereof, in which the General Court ruled on the arguments that had been put forward by VodafoneZiggo as to why the lessons to be drawn from the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (
T‑109/06
,
EU:T:2007:384
) should not be applied in the present case.
By the latter order, the General Court had dismissed as being inadmissible an action for annulment of the decision allegedly contained in a letter from the Commission to an NRA on the basis of Article 7(3) of Directive 2002/21, a provision that has been reproduced, in essence, in Article 7(3) of the Framework Directive. As is apparent from paragraph 98 of the order under appeal, VodafoneZiggo had, in that context, maintained in particular that the comments contained in that letter, relating to the economic analysis of significant market power, amounted to less fundamental reservations regarding the draft measure communicated by the NRA concerned in that case than the comments communicated in the present case concerning the market definition and the remedies envisaged by the ACM. According to VodafoneZiggo, those differences with regard to the subject matter of the comments made by the Commission in those respective acts justified distinguishing the present case from that which gave rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (
T‑109/06
,
EU:T:2007:384
).
It is thus apparent from a reading of the order under appeal as a whole that, in paragraph 104 of that order, the General Court did not state that the substance or the content of the act at issue may be disregarded when assessing any possible binding legal effects, but merely found that the fact that the comments made in that act concern a different subject matter from that of the comments contained in the letter in the case giving rise to the order of 12 December 2007, Vodafone España and Vodafone Group v Commission (
T‑109/06
,
EU:T:2007:384
) was not relevant for that purpose; the content and the substance of the act at issue were, furthermore, examined in paragraphs 88 to 105 of the order under appeal.
Since this fifth limb is therefore based on a misreading of the order under appeal, it must be rejected as being unfounded. Consequently, the first ground of appeal must be rejected in its entirety.
The second ground of appeal
Arguments of the parties
By its second ground of appeal, which it divides into two limbs, VodafoneZiggo maintains that the General Court made a procedural error by failing to address arguments capable of materially affecting the outcome of the dispute, since they establish, in its view, that the act at issue is challengeable for the purposes of Article 263 TFEU.
In the first place, the General Court failed to address its argument that, by that act, VodafoneZiggo was deprived of the possibility of BEREC submitting comments during the investigation under Article 7(4) of the Framework Directive, in which that body plays a significant additional and differentiated role from that which it plays in the context of Article 7(3), which means that it enjoys procedural rights that require protection. In paragraph 75 of the order under appeal, the General Court merely stated that such an investigation is not necessary in order to enable BEREC to share its position. The argument before it had been, however, that, even if BEREC is not obliged to submit comments under Article 7(4) of the Framework Directive, that is irrelevant, as the procedural right in question is already affected when BEREC is deprived
ab initio
of any opportunity to comment under that provision, which is the case when the Commission adopts an act under Article 7(3).
In the second place, the General Court failed to address the argument that having been heard at the national level or in the first phase of the EU-level procedure cannot remedy the fact that the act at issue forecloses the opportunity to be heard in an investigation carried out in accordance with Article 7(4) of the Framework Directive. In paragraph 68 of the order under appeal, the General Court noted that a national consultation procedure had taken place, and that the procedure at EU-level relates exclusively to the relations between, on the one hand, the NRA concerned and, on the other, the Commission, the other NRAs and BEREC. In paragraph 69 of the order under appeal, it did however acknowledge the Commission’s established practice of inviting the interested parties to submit their comments, even when this was not required by the Framework Directive. Furthermore, each of those possibilities could have resulted in a different outcome for the EU-level consultation procedure. The order under appeal is silent on that topic. Being heard at later stages, such as in the context of an appeal brought pursuant to Article 4 of the Framework Directive or in a new consultation procedure, as suggested by the General Court in paragraphs 70 and 71 of the order under appeal, may well not occur in sufficient time to enable the rights of the interested parties to be safeguarded.
The Commission contends that this second ground of appeal is unfounded.
Findings of the Court
Since VodafoneZiggo criticises the General Court for having failed to address two arguments which it had put forward, it must be noted that, by that second ground of appeal, VodafoneZiggo claims that the General Court infringed its obligation to state reasons for the order under appeal.
According to the settled case-law of the Court of Justice, the statement of the reasons on which a judgment or order is based must clearly and unequivocally disclose the General Court’s reasoning, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (judgments of 8 May 2013, Eni v Commission,
C‑508/11 P
,
EU:C:2013:289
, paragraph
and the case-law cited, and of 13 December 2018, European Union v Kendrion,
C‑150/17 P
,
EU:C:2018:1014
, paragraph
). The obligation of the General Court to state reasons does not, however, require it to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case, and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgments of 7 January 2004, Aalborg Portland and Others v Commission,
C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P
,
EU:C:2004:6
, paragraph
, and of 11 September 2014, MasterCard and Others v Commission,
C‑382/12 P
,
EU:C:2014:2201
, paragraph
).
In this case, as regards, in the first place, the argument set out in paragraph 109 of the present judgment, the General Court stated in paragraph 75 of the order under appeal that, ‘first, … the opening of the second phase of the European consultation procedure is not necessary in order to enable BEREC to share its position on a draft measure, given that, under Article 7(3) of the Framework Directive, the latter may, even in the first phase, make comments to the NRA concerned, within the same period of one month which applies without distinction to the NRAs and the Commission’.
It is not, however, the only paragraph of the order under appeal that relates to the argument that VodafoneZiggo had made to the General Court concerning the alleged relevance of the role played by BEREC in the context of Article 7 of the Framework Directive for the purposes of assessing the admissibility of its action, as the use of the term ‘first’ at the beginning of the paragraph indicates. In fact that argument was examined by the General Court in paragraphs 74 to 79 of the order under appeal.
Thus, in paragraph 74 of the order under appeal, the General Court considered that ‘BEREC may, indeed, … be involved in the second phase of the European consultation procedure pursuant to Article 7(5) … of the Framework Directive[;] however, that fact does not mean that [VodafoneZiggo] has procedural rights which should be safeguarded by means of an action under Article 263 TFEU’.
In support of that finding, in addition to the statement made in paragraph 75 of the order under appeal, the General Court noted in paragraph 76 that, ‘second, the distinction drawn by [VodafoneZiggo] between the comments that BEREC may make on a draft measure, in the context of the first phase of the European consultation procedure, and the opinion that that body may issue, in the context of the second phase of the European consultation procedure pursuant to Article 7(5) of the Framework Directive, is ineffective’.
In that regard, the General Court explained, in paragraph 77 of the order under appeal, that ‘the opinion of BEREC in the second phase of the European consultation procedure does indeed concern the measure taken by the Commission to open the second phase of the European consultation procedure and the reservations expressed in that opinion, rather than merely the draft measure, as is the case in the first phase[;] however, both exchanges of views ultimately concern the draft measure made accessible by the NRA concerned’.
In paragraph 78 of that order it added that, ‘for the same reason, it is irrelevant that the Commission, under Article 7(5) of the Framework Directive, must take “the utmost account” of the opinion issued by BEREC’, and that, ‘moreover, that requirement is not relevant, since the Commission must generally take “the utmost account of any opinion, recommendation, guidelines, advice or regulatory best practice adopted by BEREC”, in accordance with Article 3(3) of Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing [the Body of European Regulators for Electronic Communications (BEREC)] and the Office (
OJ 2009 L 337, p. 1
)’. It inferred from this, in the same paragraph 78, that ‘thus, in so far as BEREC should, before the Commission, make comments in the first phase of the European consultation procedure, the Commission would in any event be required to take the utmost account of those comments’.
Last, the General Court noted in paragraph 79 of the order under appeal that, ‘third, the involvement, in the second phase of the European consultation procedure, of BEREC, which is an institutional body separate from interested parties, is irrelevant to the protection of the applicant’s alleged procedural rights’.
In so doing, and in particular by means of the considerations set out in paragraphs 76 to 78 of the order under appeal, the General Court implicitly but necessarily rejected VodafoneZiggo’s argument that the fact that it is deprived of the possibility of BEREC making comments under Article 7(4) of the Framework Directive serves to establish that procedural rights that should be safeguarded by the Courts of the European Union are being undermined.
In so far as there is no substantial difference, according to those paragraphs of the order under appeal, between any involvement by BEREC in the phase of the procedure that is provided for in Article 7(4) of the Framework Directive and any involvement of that body envisaged in Article 7(3), it necessarily followed that that argument should be rejected, there being no ‘additional benefit’, according to the General Court, to be derived for an interested party from BEREC’s involvement in any second phase since, in any event, that involvement cannot be distinguished, in its substance or in its effects, from the involvement envisaged in Article 7(3) of the Framework Directive.
The alleged infringement of the obligation to state reasons, as set out in paragraph 109 of the present judgment has not, therefore, been established.
As regards, in the second place, the line of argument set out in paragraph 110 of the present judgment, it must be noted that the General Court stated, in paragraph 68 of the order under appeal, that, ‘the European consultation procedure as provided by the Framework Directive, whether in its first or second phase, relates exclusively to the relations between the NRA concerned, on the one hand, and other NRAs, the Commission and BEREC on the other, since the Framework Directive is silent as regards possible involvement by interested parties at EU level’.
However, in paragraph 69 of that order, the General Court did not, as VodafoneZiggo claims, recognise an established practice on the part of the Commission of inviting the interested parties to submit their comments, but indicated that, ‘even assuming that the Commission [did] routinely … invite the interested parties to submit their comments, no provision of the Framework Directive requires it to organise a consultation of interested parties at EU level, and [the Commission] may examine the comments of the parties concerned obtained at national level during the public consultation prior to the European consultation procedure’.
In that respect, it stated, in paragraph 70 of the order, that ‘where the Framework Directive provides for additional participation by the interested parties, Article 7(6) … of the Framework Directive provide[s] that it is for the NRA concerned to organise, at national level, a new public consultation, in accordance with Article 6 of the Framework Directive’. In addition, in paragraphs 71 and 72 of that order it stated that, ‘according to the legal framework established by the Framework Directive, measures affecting the interests of undertakings operating in the electronic communications sector are adopted by NRAs at national level, and not by the Commission, [and] must be subject to effective review at national level’; the procedural rights of the interested parties may thus be safeguarded before national courts or tribunals.
In the light of the foregoing, it cannot be concluded that the General Court failed to fulfil its obligation to state reasons for its rejection of the argument advanced by VodafoneZiggo to the effect that being heard in the context of Article 6, Article 7(3) or Article 4 of the Framework Directive cannot remedy the lack of opportunity to be heard in the context of Article 7(4).
Since the General Court did not recognise the practice relied on by VodafoneZiggo as having been established, it being envisaged only hypothetically, and having moreover found that the Framework Directive does not provide for the possibility that interested parties may be heard in the context of the consultation and collaboration procedure involving the NRAs, the Commission and BEREC provided for in Article 7, the rejection of that argument necessarily followed, since, in the absence of any right to that effect under Article 7, there can be no question of any infringement of such a right by the adoption of the act at issue. Accordingly, it was not necessary for the General Court to rule on it expressly.
The alleged infringement of the obligation to state reasons, as set out in paragraph 110 of the present judgment is, therefore, not established either and, since neither of the two limbs of the present ground of appeal is well founded, this ground of appeal must be rejected.
The third ground of appeal
Arguments of the parties
By its third ground of appeal, VodafoneZiggo claims that the General Court erred in law by ruling that its fundamental right to effective judicial protection was not infringed by the action being declared inadmissible, even though the General Court’s interpretation of the Framework Directive in the order under appeal leads to a conflict between the Framework Directive and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
First, according to VodafoneZiggo, the conditions of admissibility laid down in the FEU Treaty should, according to the case-law of the Court of Justice, be interpreted in the light of the fundamental right to effective judicial protection. The General Court confined itself to stating, in paragraph 114 of the order under appeal, that the right to an effective remedy cannot set aside the conditions of admissibility laid down in Article 263 TFEU, without explaining how it reconciles its finding of inadmissibility with that case-law.
Second, contrary to what the General Court held in paragraphs 115 and 116 of the order under appeal, the possibility for VodafoneZiggo of bringing an action before a national court which may itself make a reference to the Court of Justice for a preliminary ruling could not, in the present case, remedy the lack of effective judicial protection at EU level. A national court would not have jurisdiction to rule on the act at issue; neither is it obvious that it would refer a question to the Court of Justice about the validity of such an act or that such a reference would be admissible.
Third, the possibility, raised by the General Court in paragraph 117 of the order under appeal, of bringing an action against a Commission decision to veto a national measure would not answer the question whether the fundamental rights of VodafoneZiggo are infringed if a Commission act adopted pursuant to Article 7(3) of the Framework Directive cannot be challenged under Article 263 TFEU.
Fourth, the bringing of an action before a national court against the decision of the ACM would not serve to remedy the illegality of the act at issue. To the contrary, leaving the matter to the national courts alone would aggravate the infringement of VodafoneZiggo’s right to an effective remedy. By stating, in paragraphs 118 and 119 of the order under appeal, that a national court may refer questions to the Court of Justice for a preliminary ruling, the General Court failed to take account of VodafoneZiggo’s argument that the great weight that an act of the Commission carries in national proceedings may have the effect of influencing the outcome of the dispute in those proceedings, as well as the decision of the national court as to whether or not to refer questions to the Court of Justice for a preliminary ruling. Furthermore, by stating, in the same paragraph 118, that the national courts’ assessment cannot lead to a measure adopted by an EU institution having binding legal effects if it does not have such effects under EU law, the General Court had again ignored the fact that the requirement of binding legal effects must be interpreted in the light of the fundamental rights of VodafoneZiggo.
The Commission contends that this ground of appeal is unfounded.
Findings of the Court
In so far as, by this third ground of appeal and, in essence, by the third complaint of the third limb of its first ground of appeal, VodafoneZiggo claims, in the first place, that the General Court failed to interpret the Framework Directive and, therefore, to assess the admissibility of its action in the light of its fundamental right to effective judicial protection as guaranteed by Article 47 of the Charter, thereby infringing that article, it should be noted that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the explanations relating to Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration when interpreting the Charter (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission,
C‑456/13 P
,
EU:C:2015:284
, paragraph
and the case-law cited, and of 25 October 2017, Romania v Commission,
C‑599/15 P
,
EU:C:2017:801
, paragraph
and the case-law cited).
Thus, as the General Court correctly recalled in paragraph 114 of the order under appeal, although the conditions of admissibility laid down in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty (see, to that effect, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission,
C‑456/13 P
,
EU:C:2015:284
, paragraph
and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission,
C‑244/16 P
,
EU:C:2018:177
, paragraph
).
Therefore, the interpretation of the concept of ‘challengeable act’, for the purposes of Article 263 TFEU, in the light of Article 47 of the Charter cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the FEU Treaty on the Courts of the European Union (see, to that effect, judgments of 25 October 2017, Romania v Commission,
C‑599/15 P
EU:C:2020:530
, paragraph
and the case-law cited, and of 9 July 2020, Czech Republic v Commission,
C‑575/18 P
,
EU:C:2020:530
, paragraph
).
That would in fact, however, be the case if an applicant such as VodafoneZiggo were allowed to bring an action for annulment in respect of a measure which is not a challengeable act for the purposes of Article 263 TFEU in that, having regard to the context in which it was adopted, its content and its preparatory nature, it does not have binding legal effects, as the General Court ruled, in essence, in paragraphs 28 to 112 of the order under appeal; VodafoneZiggo has, in the context of the present appeal, either not disputed that those paragraphs are well founded in law, or been unable to establish that they are incorrect in law.
In addition, it is apparent from the order under appeal that, contrary to VodafoneZiggo’s contention, the General Court did in fact explain how its finding that the action brought by that company had to be dismissed as inadmissible was reconcilable with the right to effective judicial protection guaranteed by Article 47 of the Charter.
In paragraph 115 of that order, the General Court noted that Article 4 of the Framework Directive requires Member States to establish an appeal mechanism in respect of the decisions of the NRAs, thereby organising a full system of judicial protection, which the Court of Justice has, moreover, already established (see, to that effect, judgment of 22 January 2015, T-Mobile Austria,
C‑282/13
,
EU:C:2015:24
, paragraphs
and
and the case-law cited). In that regard it stated, first, in paragraph 116 of that order, that where the Commission’s role is limited, as in the present case, to making comments pursuant to Article 7(3) of the Framework Directive leading, in principle, to the adoption of a decision by the NRA concerned, a right of action is available in respect of that decision before the relevant national courts which may then, in accordance with Article 267 TFEU, refer questions to the Court of Justice for a preliminary ruling concerning the EU regulatory framework applicable to a given situation, and second, in paragraph 117 of the order, that if the Commission exercises its right of veto under Article 7(5)(a) of the Framework Directive, the procedure leads, in its view, to the adoption of an EU act which produces binding legal effects and a right of action is then available before the Courts of the European Union under Article 263 TFEU.
The first complaint of the present ground of appeal must, therefore, be rejected.
Since VodafoneZiggo claims, in the second place, that, contrary to what the General Court held in paragraphs 115 and 116 of the order under appeal, the possibility that a national court may make a reference to the Court of Justice for a preliminary ruling does not ensure that VodafoneZiggo has effective judicial protection at EU level, it must be noted that judicial review of compliance with the EU legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has, by Articles 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, and has entrusted such review to the Courts of the European Union (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission,
C‑456/13 P
,
EU:C:2015:284
, paragraph
and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission,
C‑244/16 P
,
EU:C:2018:177
, paragraph
). In addition, references for a preliminary ruling on validity constitute, like actions for annulment, means for reviewing the legality of EU acts (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission,
C‑456/13 P
,
EU:C:2015:284
, paragraph
and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission,
C‑244/16 P
,
EU:C:2018:177
, paragraph
).
In that regard, it must be pointed out that where a national court or tribunal considers that one or more arguments for invalidity of an EU act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court of Justice for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare an EU act invalid (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission,
C‑456/13 P
,
EU:C:2015:284
, paragraph
and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission,
C‑244/16 P
,
EU:C:2018:177
, paragraph
), and that Article 267 TFEU confers on the Court jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception (judgments of 13 December 1989, Grimaldi,
C‑322/88
,
EU:C:1989:646
, paragraph
, and of 20 February 2018, Belgium v Commission,
C‑16/16 P
,
EU:C:2018:79
, paragraph
); the latter case-law was, furthermore, recalled by the General Court in paragraph 116 of the order under appeal.
The fact, invoked by VodafoneZiggo, that it is not certain that a national court seised of an action in respect of an NRA decision adopted following the procedure laid down by Article 7 of the Framework Directive will refer questions to the Court for a preliminary ruling cannot reasonably justify its position.
It is true that the mere fact that a party contends that the dispute gives rise to a question concerning the validity of EU law does not mean that the court concerned is compelled to consider that such a question has been raised within the meaning of Article 267 TFEU. In particular, the Court of Justice has held that courts against whose decisions there is a judicial remedy under national law may examine the validity of the EU act in dispute and, if they consider that the arguments put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the act is completely valid. In so doing, they are not calling into question the existence of the EU act (see, to that effect, judgment of 10 January 2006, IATA and ELFAA,
C‑344/04
,
EU:C:2006:10
, paragraphs
and
and the case-law cited).
By contrast, as is also apparent from the case-law cited in paragraph 144 of the present judgment, any party has the right, in proceedings before the national courts, to plead, before the court hearing the case, the invalidity of an act of the European Union and to ask that court, which has no jurisdiction itself to declare the act invalid, to put that question to the Court by means of a reference for a preliminary ruling (judgment of 27 November 2012, Pringle,
C‑370/12
,
EU:C:2012:756
, paragraph
and the case-law cited).
Furthermore, the fact that the national court is empowered to determine which questions it intends to submit to the Court of Justice is an inherent feature of the system of means of redress established by the FEU Treaty and is not an argument which is capable of justifying a broad interpretation of the conditions of admissibility laid down in Article 263 TFEU (see, to that effect, judgment of 21 May 1987, Union Deutsche Lebensmittelwerke and Others v Commission,
97/85
,
EU:C:1987:243
, paragraph
).
It should also be noted that the arguments advanced by VodafoneZiggo effectively deny the capacity of national courts and tribunals to contribute to compliance with the legal order of the European Union, when it is common ground that judicial review of compliance with that legal order is ensured, as can be seen from Article 19(1) TEU and as has already been recalled in paragraph 143 of the present judgment, not only by the Court of Justice but also by the courts and tribunals of the Member States, and that the latter, in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011,
EU:C:2011:123
, paragraphs
and
, and judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council,
C‑583/11 P
,
EU:C:2013:625
, paragraphs
and
). Those arguments cannot, therefore, be accepted.
In the light of those points, the General Court did not err in law when it found, in essence, in paragraphs 115 and 116 of the order under appeal that the possibility for VodafoneZiggo of bringing an action before a national court in respect of the decision adopted by the NRA following the communication by the Commission of comments pursuant to Article 7(3) of the Framework Directive ensured that its right to effective judicial protection, within the meaning of Article 47 of the Charter, was respected, notwithstanding the fact that its action before the General Court for annulment of the act at issue was inadmissible.
In the third place, as regards the complaint set out in paragraph 133 of the present judgment, it is sufficient to note that, contrary to VodafoneZiggo’s contention, the General Court did rule on the question whether VodafoneZiggo’s right to effective judicial protection is infringed as a result of the inadmissibility of its action before the General Court and, as is apparent from paragraphs 136 to 150 of the present judgment, correctly held that that is not the case, as paragraph 117 of the order under appeal, disputed in that third complaint, in fact serves to demonstrate, since that paragraph, the content of which is set out in paragraph 141 of the present judgment, supplements the presentation of the full system of judicial protection organised by the Framework Directive. This complaint is therefore unfounded.
In the fourth place, as regards the complaint set out in paragraph 134 of the present judgment, it must be noted that, in so far as VodafoneZiggo takes issue with paragraph 118 of the order under appeal, it again submits, in essence, that the General Court erred in law by concluding that the reference for a preliminary ruling provided for in Article 267 TFEU serves to ensure that its right to effective judicial protection is safeguarded, even though the triggering of such a reference is not guaranteed. As is apparent also from paragraphs 136 to 150 of the present judgment, the General Court did not err in law in that respect.
Furthermore, in so far as, by that complaint, VodafoneZiggo is referring to paragraph 119 of the order under appeal, it is sufficient to note that that paragraph is included for the sake of completeness and, accordingly, the complaint is to that extent in any event ineffective, in accordance with the case-law recalled in paragraph 62 of the present judgment.
The third ground of appeal must, therefore, be rejected in its entirety, as must the third complaint of the third limb of the first ground of appeal.
Since none of the grounds relied on by VodafoneZiggo in support of its appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for VodafoneZiggo to pay the costs and since the latter has been unsuccessful, VodafoneZiggo must be ordered to pay the costs.

On those grounds, the Court (Tenth Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders VodafoneZiggo Group BV to pay the costs.

Juhász
Lycourgos
Jarukaitis
Delivered in open court in Luxembourg on 25 February 2021.
A. Calot Escobar
Registrar
E. Juhász
Acting as President of the Tenth Chamber
(
*1
)	Language of the case: English.