Judgment — ECLI:EU:C:2015:657
Date: 2015-10-06
Language of the case: Czech
Court formation: Fifth Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary — Judgment of the Court (Fifth Chamber), 6 October 2015 1. Questions referred for a preliminary ruling — Reference to the Court — Determination of the questions to be referred — Exclusive jurisdiction of the national courts — No possibility for the parties to change the wording of the questions — Obligation of the Court to abide by the questions as stated in the order for reference (Art. 267 TFEU; Statute of the Court of Justice, Art. 23) 2. Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Calculating the cost and financing of the universal service obligations — Taking into consideration ‘reasonable profit’ defined as the rate of return on equity capital — Lawfulness — Verification by the national court (European Parliament and Council Directive 2002/22, Arts 12 and 13) 3. Acts of the institutions — Directives — Direct effect — Conditions — Adverse repercussions on the rights of third parties — No effect (Art. 288, third para., TFEU) 4. Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Calculating the cost and financing of the universal service obligations — Taking into consideration the ‘reasonable profit’ defined as the rate of return on equity capital — Direct effect (European Parliament and Council Directive 2002/22, Arts 12 and 13) 5. Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Calculating the cost and financing of the universal service obligations — Applicability to the new Member States — Act of Accession 2003 does not contain special provisions concerning the application of the articles of that directive — Applicability to those Member States as from the date of accession (Act of Accession 2003, Arts 2, 53 and 54; European Parliament and Council Directive 2002/22, Arts 12 and 13) 1. Since, under Article 267 TFEU, it is for the national court or tribunal, not the parties to the main proceedings, to bring a matter before the Court, the right to determine the questions to be put to the Court devolves on the national court alone and the parties may not change their tenor. Moreover, to answer requests to amend the questions formulated by the parties in the main proceedings would be incompatible with the function given to the Court by Article 267 TFEU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties. (see paras 28, 29) 2. Articles 12 and 13 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding the net cost of the universal service obligation from including the ‘reasonable profit’ of the provider of that service, fixed at the rate of return on equity capital that would be required by an undertaking comparable to the universal service provider considering whether or not to provide the service of general economic interest for the whole duration of the period of entrustment, taking into account the level of risk. The level of risk depends on the sector concerned, the type of service and the characteristics of the compensation mechanism. The rate is defined as the internal rate of return which the undertaking obtains on the capital invested during the period of entrustment. That rate may be determined by taking comparable undertakings as a point of reference. (see paras 43-45, operative part 1) 3. See the text of the decision. (see paras 47, 48) 4. Articles 12 and 13 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as having direct effect and they may be relied on directly before a national court by individuals to challenge a decision of a national regulatory authority. Those provisions appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, in that they clearly state that any financing of the universal service obligations must be made on the basis of the calculation of the net cost, which must be interpreted as also including ‘reasonable profit’, equivalent to the rate of return on capital, and that that obligation is not qualified by any condition. Even though Directive 2002/22 allows the national regulatory authorities a certain degree of discretion when implementing those provisions, that does not alter the precise and unconditional nature of the obligation arising out of those provisions. (see paras 52-54, operative part 2) 5. Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted to the effect that it is not applicable for the purpose of determining the amount of the net cost of the obligations relating to the universal service provided by the designated undertaking during the period prior to the accession of the Member State concerned to the European Union, that is to say, for the year 2004, between 1 January and 30 April 2004. The Act concerning the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded does not contain special provisions concerning the application of the articles of that directive before the accession of that Member State. In the absence of such provisions, that directive became applicable to that Member State from the date of its accession to the European Union, pursuant to Articles 2, 53 and 54 of the Act of Accession. (see paras 57-59, operative part 3)