Opinion of the Advocate General — ECLI:EU:C:2009:252
Date: 2009-04-23
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Telecommunications
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment Approximation of laws – Electronic communications networks and services – Regulatory framework – Directives 2002/19, 2002/21 and 2002/22 (European Parliament and Council Directives 2002/19, Art. 8(4), 2002/21, Arts 6 to 8(1) and (2), 15(3) and 16, and 2002/22, Art. 17(2)) A Member State which adopts legal provisions which limit the discretion of the national regulatory authority (NRA) and do not comply with the consultation and consolidation procedures laid down in Articles 6 and 7 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, fails to fulfil its obligations under Article 8(4) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, Articles 6 to 8(1) and (2), 15(3) and 16 of Directive 2002/21 and Article 17(2) of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services. In carrying out their regulatory functions, the NRAs have a broad discretion in order to determine the need to regulate an electronic communications market according to each situation on a case-by-case basis. Under Article 15 of Directive 2002/21, in particular subparagraph 3 thereof, the NRAs are required to define the relevant markets in that sector in close collaboration with the Commission. In accordance with Article 16 of that directive, the NRAs then carry out the analysis of the markets thus defined and determine whether those markets are effectively competitive. If that is not the case, the NRA concerned imposes ex ante regulatory obligations on undertakings with significant market power on that market. Those articles relate to the electronic commutations sector in general and do not exclude new markets or any other markets from their scope. A national provision which expressly provides that new markets should not be regulated unless certain factors, such as the absence of sustainable competition on the market, show that it is necessary to do so, encroaches on the wide powers conferred on the NRA, preventing it from adopting regulatory measures appropriate to each particular case, and thus is not consistent with Article 16 of Directive 2002/21. The limitation of the NRA’s discretion which results from such a provision also necessarily affects its ability to define the market. The NRA will no longer be led to define the relevant markets in accordance with Article 15(3) of that directive, inasmuch as the markets identified in the annex to the Commission recommendation on relevant production and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21 already fall within the definition of a new market established by the national legislation. Similarly, it is clear from Article 8(4) of Directive 2002/19 and Article 17(2) of Directive 2002/22 that the obligations imposed under those articles are based on the nature of the problem identified, and are proportionate and justified in the light of the objectives sent out in Article 8 of Directive 2002/21, and that it is for the NRAs to promote the regulatory objectives referred to in that article and, therefore, to balance those objectives when defining and analysing a relevant market susceptible to regulation. A national provision which gives priority to only one of those objectives, such as the objective of promoting effective investment in infrastructure and supporting innovation, in the analysis by the NRA of the need to regulate a new market infringes Article 8(4) of Directive 2002/19, Article 8(1) and (2) of Directive 2002/21 and Article 17(2) of Directive 2002/22 and limits the NRAs discretion in a manner incompatible with those directives. A national provision which imposes conditions more restrictive than those laid down by that directive for analysing relevant markets susceptible to regulation, such as that which provides as a criterion, so that a new market may by way of exception be subject to ex ante regulation, that there be a risk of a long-term impediment to the development of sustainable competition on those markets, is also contrary to Article 16 of Directive 2002/21. Lastly, a national provision, which imposes a principle of non-regulation of new markets, limits the NRA’s discretion to subject new markets to definition and to market analysis. That necessarily involves a failure in certain circumstances to follow the procedures laid down in Articles 6 and 7 of Directive 2002/21, to which Articles 15(3) and 16(6) thereof refer with respect to the definition and analysis of the market. (see paras 55-56, 61, 64, 66, 78, 82-83, 86, 90-91, 93-94, 98-99, 105-106, 108, operative part)