CELEX: 62007CJ0082
Electronic communications
Networks and services
Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive)
National numbering plans
Specific regulatory authority

This reference for a preliminary ruling concerns the interpretation of Articles 3(2) and 10(1) of 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) (‘the Framework Directive’), read in conjunction with Recital
(11) in the preamble thereto.
The reference has been made in the course of an action in which the Comisión del Mercado de las Telecomunicaciones (‘the CMT’)
is seeking the annulment of all or part of Royal Decree 2296/2004 adopting the regulation on electronic communications markets,
network access and numbering (Real Decreto 2296/2004 por el que se aprueba el Reglamento sobre mercados de comunicaciones
electrónicas, acceso a las redes y numeración) of 10 December 2004 (BOE No 314 of 30 December 2004, p. 42372) and certain
points of the National Telephone Numbering Plan annexed to that Royal Decree, on the ground that they are contrary to General
Law 32/2003 on Telecommunications (Ley General 32/2003 de Telecomunicaciones) of 3 November 2003 (BOE No 264 of 4 November
2003, p. 38890) (‘the GTL’) which transposed the Framework Directive into national law.

Community legal framework
Recital (11) in the preamble to the Framework Directive states:
‘In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee
the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions.
This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the
Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property
ownership laid down in Article 295 of the Treaty. National regulatory authorities should be in possession of all the necessary
resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.’
Recital (20) of that directive states:
‘Access to numbering resources on the basis of transparent, objective and non-discriminatory criteria is essential for undertakings
to compete in the electronic communications sector. All elements of national numbering plans should be managed by national
regulatory authorities, including point codes used in network addressing. …’
Article 2(g) of the Framework Directive defines the ‘national regulatory authority’ as ‘the body or bodies charged by a Member
State with any of the regulatory tasks assigned in this Directive and the Specific Directives’.
Under Article 2(m) of the Framework Directive, the ‘provision of an electronic communications network’ is defined as the establishment,
operation, control or making available of such a network.
Article 3 of the Framework Directive, entitled ‘National regulatory authorities’, provides:
‘1.      Member States shall ensure that each of the tasks assigned to national regulatory authorities in this Directive and the Specific
Directives is undertaken by a competent body.
2.      Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct
from and functionally independent of all organisations providing electronic communications networks, equipment or services.
Member States that retain ownership or control of undertakings providing electronic communications networks and/or services
shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
3.      Member States shall ensure that national regulatory authorities exercise their powers impartially and transparently.
4.      Member States shall publish the tasks to be undertaken by national regulatory authorities in an easily accessible form, in
particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation
and cooperation between those authorities, and between those authorities and national authorities entrusted with the implementation
of competition law and national authorities entrusted with the implementation of consumer law, on matters of common interest.
Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks
of each authority are published in an easily accessible form.
…
6.      Member States shall notify to the Commission all national regulatory authorities assigned tasks under this Directive and the
Specific Directives, and their respective responsibilities’.
Paragraph 1 of Article 10 of the Framework Directive, which is entitled ‘Numbering, naming and addressing’, provides:
‘Member States shall ensure that national regulatory authorities control the assignment of all national numbering resources
and the management of the national numbering plans. Member States shall ensure that adequate numbers and numbering ranges
are provided for all publicly available electronic communications services. National regulatory authorities shall establish
objective, transparent and non-discriminatory assigning procedures for national numbering resources.’

The dispute in the main proceedings and the questions referred for a preliminary ruling
On 9 December 2005, the CMT lodged an application with the Tribunal Supremo seeking the annulment, with cessation of effects,
of Articles 27(1), 27(3), 28(2), 34, 36, 38, 40(1), 40(3), 49 and 55 of Royal Decree 2296/2004 and paragraphs 5(4) and 10(1)
of the National Telephone Numbering Plan, annexed to that decree, on the ground that they are contrary to the GTL.
The CMT submits that those provisions do not respect the division of powers, with respect to the management of public numbering
resources, provided for in Articles 16 and 48 of the GTL. The residual competence of the Ministry of Industry, Tourism and
Commerce in that field, provided for under earlier legislative provisions and those of the GTL, is set out in such detail
in Royal Decree 2296/2004 that the role of the CTM is reduced merely to implementing the decisions taken by that ministry.
Further, the CTM argues that the royal decree goes beyond the GTL, in breach of the principles of legality, the hierarchy
of norms and legal certainty, and disregards the provisions of Article 10(1) of the Framework Directive.
By judgment of 23 January 2007, the Tribunal Supremo decided to stay proceedings and to refer the following questions to the
Court of Justice for a preliminary ruling:
‘1.      Do Articles 3(2) and 10(1) of the [Framework] Directive, in conjunction with Recital (11), require Member States to allocate
to separate authorities “regulatory functions” on the one hand and “operational” functions on the other, in relation to assigning
national numbering resources and managing national numbering plans?
2.      Where a Member State, on transposing the [Framework] Directive into its national law, has charged a specific authority with
assigning national numbering resources and managing national numbering plans, may it at the same time reduce that authority’s
powers in that sphere, conferring them on other authorities or on its own State administration, with the result that management
of those resources is in reality shared between various authorities?’

The questions referred

The first question
It should be noted at the outset that, according to Recital (1) of the Framework Directive, the new regulatory framework for
telecommunications – namely, Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation
of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), Directive 2002/22/EC
of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic
communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), and Directive 2002/19/EC of the
European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks
and associated facilities (Access Directive) (OJ 2002 L 108, p. 7) – was adopted after the previous regulatory framework had
been successful in creating the conditions for effective competition in the telecommunications sector during the transition
from monopoly to full competition.
That is the appropriate context in which to assess Recital (11) of the Framework Directive, according to which the Member
States must, under the principle of the separation of regulatory and operational functions, guarantee the independence of
the national regulatory authority or authorities (‘the regulatory authorities’) in order to ensure the impartiality of their
decisions.
Article 3(2) of the Framework Directive specifies the means by which it should be possible to guarantee the independence of
the regulatory authorities, providing that they must be legally distinct from and functionally independent of all organisations
providing electronic communications networks, equipment or services. Where Member States retain ownership or control of undertakings
providing electronic communications networks and/or services, they are to take care, specifically, to ensure effective structural
separation of the regulatory function, on the one hand, from activities associated with ownership or control of those undertakings,
on the other.
As regards the assigning of the national numbering resources and the management of the national numbering plans, it should
be pointed out at the outset that such functions form no part of the functions exercised by entities which ensure services
and/or networks provision, as defined in Article 2(m) of the Framework Directive. They must therefore be regarded, not as
‘operational functions’ within the meaning of Recital (11) of that directive, but as ‘regulatory functions’.
Moreover, the referring court seems to be unsure whether the Framework Directive allows Member States to allocate, on the
one hand, the regulatory functions, and on the other, the management functions involved in assigning national numbering resources
and national numbering plans, to separate regulatory authorities.
In that regard, it is clear from Article 10(1) of the Framework Directive, read in conjunction with Article 3(2) thereof,
that (i) Member States must allocate to one or more regulatory authorities control of the assignment of all national numbering
resources, as well as the management of the national numbering plans; (ii) those regulatory authorities must be legally distinct
from and functionally independent of all organisations providing electronic communications networks, equipment or services;
and (iii) Member States which retain ownership or control of undertakings providing electronic communications networks and/or
services must ensure effective structural separation of activities associated with ownership or control of those undertakings,
on the one hand, and regulatory functions (including the assignment of national numbering resources and the management of
the national numbering plans), on the other.
That finding is substantiated both by Recital (11) of the Framework Directive, in accordance with which Member States should
guarantee the independence of the national regulatory authority or authorities, and by Article 3(4) of that directive, which
provides that Member States must publish the tasks to be undertaken by those regulatory authorities, in particular where those
tasks are assigned to more than one body.
Moreover, the potentially pluralist nature of regulatory authorities is clear from the very definition of ‘national regulatory
authority’ set out in Article 2(g) of the Framework Directive.
In contrast, it must be noted that there is no provision in the Framework Directive, under which the regulatory authority
to which the tasks of assigning national numbering resources and management of national numbering plans have been assigned
is required to be distinct from or independent of the other regulatory authorities and, in particular, from the authority
with responsibility for adopting the national numbering plan or the control and management procedures of that plan.
In the light of all of the foregoing, the reply to the first question must be that Articles 3(2), 3(4) and 10(1) of the Framework
Directive, read in conjunction with Recital (11) thereof, must be interpreted as meaning that the assignment of the national
numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States
are not required to allocate those different functions to separate regulatory authorities.

The second question
By its second question, the referring court wishes to know whether a Member State may allocate the regulatory functions referred
to in Article 10(1) of the Framework Directive to a number of regulatory authorities.
It is clear from the wording of Articles 2(g) and 10(1) of the Framework Directive that it is possible for more than one regulatory
authority to have control over the assignment of national numbering resources and the management of national numbering plans.
Although the Member States enjoy institutional autonomy as regards the organisation and the structuring of their regulatory
authorities within the meaning of Article 2(g) of the Framework Directive, that autonomy may be exercised only in accordance
with the objectives and obligations laid down in that directive.
Thus, in accordance with Article 3(2), (4) and (6) of the Framework Directive, the Member States must not only guarantee the
functional independence of regulatory authorities in relation to the organisations providing electronic communications networks,
equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken by the national regulatory
authorities, and notify to the Commission the names of the regulatory authorities entrusted with carrying out those tasks,
and their respective responsibilities.
As a consequence, where those functions are to be discharged, even partially, by ministerial authorities, each Member State
must ensure that those authorities are neither directly nor indirectly involved in ‘operational functions’ within the meaning
of the Framework Directive.
It follows from all of the foregoing that the reply to the second question referred must be that Article 10(1) and Article
3(2), (4) and (6) of the Framework Directive must be interpreted as not precluding the functions of assigning national numbering
resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided
that the allocation of the tasks is made public and easily accessible, and notified to the Commission.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1.
Articles 3(2), 3(4) and 10(1) of 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), read in conjunction with Recital
(11) in the preamble to that directive, must be interpreted as meaning that the assignment of the national numbering resources
and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required
to allocate those different functions to separate regulatory authorities.
2.
Article 10(1) and Article 3(2), (4) and (6) of Directive 2002/21 must be interpreted as not precluding the functions of assigning
national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory
authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission
of the European Communities.
[Signatures]
*
Language of the case: Spanish.