# C_2014009EN.01000401.xml

| 11.1.2014 | EN | Official Journal of the European Union | C 9/4 |
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11.1.2014

EN

Official Journal of the European Union

C 9/4

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Judgment of the Court (Third Chamber) of 7 November 2013 (request for a preliminary ruling from the Gerechtshof te Amsterdam — Netherlands) — UPC Nederland BV v Gemeente Hilversum

(Case C-518/11) (1)

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(Electronic communications networks and services - Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC - Scope ratione materiae - Provision of a basic package of radio and television programmes via cable - Sale by a municipality of its cable network to a private undertaking - Contractual clause concerning the tariff - Powers of the national regulatory authorities - Principle of sincere cooperation)

2014/C 9/05

Language of the case: Dutch

Referring court

Referring court

Gerechtshof te Amsterdam

Parties to the main proceedings

Parties to the main proceedings

Applicant: UPC Nederland BV

Applicant:

Defendant: Gemeente Hilversum

Defendant:

Re:

Re:

Request for a preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 8(4) of 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), 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), and 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) — Provision of a package of free-to-air radio and television programmes via cable — Municipality having disposed of its cable operation — Limitation of retail prices — Competition rules — Application by the national courts

Operative part of the judgment

Operative part of the judgment

| 1. | Article 2(c) 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) must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 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), 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) and 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), constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer. |
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1.

Article 2(c) 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) must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 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), 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) and 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), constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer.

| 2. | Those directives must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity such as that at issue in the main proceedings, which is not a national regulatory authority, from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable. |
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2.

Those directives must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity such as that at issue in the main proceedings, which is not a national regulatory authority, from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable.

| 3. | The same directives must be interpreted as precluding, in circumstances such as those in the main proceedings and having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs. |
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3.

The same directives must be interpreted as precluding, in circumstances such as those in the main proceedings and having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs.

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(1)  OJ C 25, 28.1.2012.

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