Opinion of the Advocate General — ECLI:EU:C:2007:118
Date: 2007-02-27
Language of the case: Czech
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary, the Court of Justice is requested to indicate whether the said Community rules govern the events of the dispute in the main proceedings. B – The jurisdiction of the Court of Justice 31. This way of approaching the argument makes it obvious that the Czech Government’s contention that the questions referred for a preliminary ruling should be immediately dismissed, on the ground that the Court of Justice has no jurisdiction rationae temporis, is without foundation. 32. The issue in the present case does not relate, as in Ynos, (12) to events which took place and were completed in a Member State prior to its entry into the Communities, a state of affairs where the Court of Justice would have no jurisdiction, (13) but rather to determining the applicability in time of certain directives in relation to an event which began before and ended after that date of entry, a situation in which the Court is certainly competent as supreme and ultimate interpreter of Community law. 33. Although Czech On Line’s application was submitted and decided at first instance at a time when the Czech Republic was not yet a member of the Communities, (14) the decision was revoked later, at a time when the Czech Republic had joined the European Union. (15) It is not appropriate then that the Court of Justice should assess either the annulment or what followed; rather, in order to legitimise the Court’s action in giving a preliminary ruling, it is enough that the national courts confronted by such a set of circumstances have a doubt as to the application of Community law to the case and refer questions to the Court of Justice on the temporal validity of the Community rules. 34. Consequently, the questions raised are bound up with the Community legal order and it is the duty of the Court of Justice to give an interpretation as requested. (16) It must not be forgotten that, in the dialogue of Article 234 EC, it falls to the national court, before which the principal dispute has been brought and which must assume responsibility for the decision, to assess whether interpretation is necessary and whether the questions referred are relevant. (17) The reference will be presumed to be relevant except when the questions on Community law bear no relation to the object of the proceedings, the problem raised is hypothetical, or the Court of Justice does not have before it the factual or legal material necessary to give a useful answer. (18) C – The first question referred: unnecessary consultation 35. Nonetheless, the Czech Government is partly right, since the Obvodní Soud outlines a problem which need not have been brought before the Court of Justice, that is, the consideration of whether, once the Czech Republic was a member of the European Union, the Czech Telecommunications Office could oblige Telefónica 02 to connect its network with that of Czech On Line. 36. The outcome is the same, whatever the legislation examined: whether reference is made to Directive No 97/33, or whether the Framework and Access Directives are chosen, or whether, if the matter is regarded as outside the scope of Community law, Law No 151/2000 is chosen, the Czech Telecommunications Office had the power to impose that obligation, since there is no divergence on that point. 37. Consequently, no Court of that Member State would have any doubt as to the response, since Law No 151/2000 specified that possibility (Article 40(5) read in conjunction with Article 37(1)), without the interpretation of Community law affecting the decision, since the latter also envisages that possibility, both in Directive 97/33 (Article 4(2)) and in the directives adopted in 2002 (Article 8 read in conjunction with Article 12 of the Access Directive). On that point there is no difference between the national legal system and the European, so that calling on the latter order appears unnecessary. 38. Accordingly, since the Czech court’s first question does not touch on Community law, the Court of Justice must be silent and must not undertake the ‘inter-temporal’ analysis which the Commission incorporates in its written observations, since, in accordance with the first paragraph of Article 27 of the Framework Directive, that implies the existence of earlier obligations, a hypothesis which does not accord with what is at issue before the Obvodní Soud, where the contested administrative decision imposed the obligation ex novo. D – The second and third questions referred for a preliminary ruling 39. The argument is different. Once Telefónica 02 was recognised to have significant market power, the Czech Telecommunications Office was able to order the interconnection of its network with that of Czech On Line, but it remains to be clarified whether the Czech Telecommunications Office could do that automatically, as permitted by the national legislation, or whether a market analysis had to be carried out, as stipulated by the law of the European Union (second and third questions). 40. Given that Law No 151/2000 was not compatible with the 2002 Directives, the applicability of Community law moves the centre of gravity of the argument towards the fourth question, which inquires whether, because of their primacy, (19) those Directives satisfy the requirements necessary in order to have direct effect and to displace unharmonised national law. 41. If the answer to the last question is negative, the response to the second and third questions would be immaterial, since, in both possible cases the Czech Telecommunications Office could impose the obligation without undertaking the market analysis, because the said Directives would lack direct effect. 42. Consequently, this apparently complex reference for a preliminary ruling, now that the ground has been cleared, is reduced to deciding whether Article 8(2) of the Access Directive and Article 16, read in conjunction with Article 6 and Article 7, of the Framework Directive meet the conditions set out in the case-law in order for a provision of this kind to be directly applicable. E – The fourth question: direct effect 43. This characteristic of the provisions of a directive, which is a corollary of and at the same time the instrument of the primacy [of Community law] over national law, (20) is construed as an automatic ‘sanction’ on Member States which avoid compliance with their obligations, given that they must refrain from relying on their own law in order to resist the provisions of a directive which, as to content, are unconditional and sufficiently precise. (21) 44. Those are the criteria for provisions unequivocally laying down an obligation which is not qualified by any condition (22) and is not made subject, in its implementation or effects, to the adoption of any measure either by the Community institutions or by the Member States. (23) 45. There is no difficulty in finding that the provisions of the Framework and Access Directives do not have such characteristics, since the market analysis, to which Article 8(2), of the Access Directive refers, is carried out under Article 16 and is based on the principles set out in Article 6 and Article 7 of the Framework Directive. In other words, such analysis is subject to the guidelines which, in accordance with Article 15(2) of the Framework Directive itself, the Commission approves in collaboration with the national competition authorities (Article 16(1)), and must comply with rules which the appropriate national authority must publish, in order to satisfy the criteria of transparency and consultation (Article 6) with the assistance of the Commission and the relevant bodies of other Member States (Article 7(3), Article7(4) and Article 7(5)). 46. Even if it were to be accepted that those provisions combine the conditions which are essential if they are to have direct applicability, in the present case this could not be achieved, since Community case law denies such effect to Directives where the dispute is between private parties. In the Opinion delivered on 6 May 2003 in Pfeiffer, (24) I observed that the Court of Justice consistently refuses to recognise that one individual can rely on a directive against another individual if the directive has not been correctly implemented by the Member State within the prescribed period. The Court has stated that in accordance with Article 249 EC, the binding nature of a directive, which constitutes the basis for the possibility of relying on it before a national court, exists only in relation to ‘each Member State to which it is addressed’, from which it follows that a directive cannot itself create obligations which can be enforced by an individual, nor can they be enforced against him (paragraph 56). (25) 47. The dispute giving rise to this reference for a preliminary ruling is a model case of a dispute inter privatos. Two undertakings do battle over the obligation which the Access Directive imposes on the dominant company to allow the interconnection claimed by the other, and the intervention of the administrative authorities has no other purpose than to take the place of the willingness of the competing parties in order to effect an agreement which they are incapable of concluding. This perspective differs from that envisaged in Wells, (26) where the direct effect of a directive (27) was recognised in favour of a British resident against the State, although indirectly this recognition affected the legal rights of another individual. 48. In short, the articles above referred to of the Framework and Access Directives do not have direct effect, with the result that Telefónica 02 cannot rely on them in order to annul the decision of the Czech Telecommunications Office. (28) F – By way of epilogue 49. The reference for a preliminary ruling is a procedure which is at the service of the Courts of the Member States, so that the Court of Justice may provide them with guidance which is sufficient for the execution of Community law. The system under Article 234 EC rests on the difference between the interpretation and application of legal rules, allowing a reconciliation of the legitimate authority of the national court with the indispensable uniformity of the Community legal order, which is, as Robert Lecourt has pointed out in the past, (29) a task which requires a finely-drawn division of powers. (30) 50. This approach to the structure of the reference for a preliminary ruling leads to the recommendation that the Court of Justice should reduce its intervention to what is strictly necessary, and should restrict itself, within the limits defined by the order for reference, (31) to providing a solution which is of assistance, and should avoid making declarations which are of no assistance to the original dispute. The solution would otherwise take on the appearance of an abstraction, unconnected to any specific circumstances, as if what was at issue was an action for judicial review. 51. In the light of the foregoing reasoning, the provisions of the Framework and Access Directives cited in the order for reference do not serve to resolve the dispute, and accordingly any interpretation by the Court of Justice is superfluous. In order to give an answer which is of use, (32) the Court must make it clear to the referring court that the provisions in question do not have direct effect and that, consequently, the Czech Telecommunications Office was not obliged to carry out an analysis of the market in order to compel Telefónica 02 to connect its ADSL network with that of Czech On Line. VII – Conclusion 52. In the light of the foregoing, I propose that the Court of Justice give the following answer to the question submitted by the Obvodní soud pro Prahu 3: Article 8(2) 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) and Article 16 read in conjunction with Articles 6 and 7 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), since they have not been transposed into national law, do not fulfil the conditions necessary to have direct effect and accordingly are not applicable to the facts of the main proceedings. That being the case, it follows that the power of Český telekomuikační uřad (Czech Telecommunications Office) to compel Telefónica 02 to connect its ADSL lines with those of Czech On Line was not dependent on a prior analysis of the market. 1 – Original language: Spanish. 2 – Directives of the European Parliament and of the Council of 7 March 2002 (OJ 2002 L 108 pp. 33 and 7 respectively). 3 – Case C‑339/04 Nuova società di telecomunicazioni [2006] ECR I-6917. 4 – The point of departure was Commission Directive 90/388/EEC of 28 June 1990 on competition in telecommunications services (OJ 1990 L 192, p. 10) amended on several occasions until its replacement by Commission Directive 2002/77/EC of 16 September 2002 (OJ 2002 L 249, p. 21). 5 – Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (OJ 1990 L 192, p. 1), as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 295, p. 23). Also within this group are Council Directive 92/44/EEC of 5 June 1992 (OJ 1992 L 165, p. 27) and Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 (OJ 1998 L 101, p. 24), the first of which extends open network provision to leased lines, and the second to voice telephony. 6 – OJ 1997 L 199, p. 32. 7 – Together with 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) (OJ 2002 L 108, pp. 21 and 51). 8 – ‘Interconnection’ means the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users to communicate or to access their respective services (Article 2(1)(a) of Directive 97/33 and Article 2(b) of the Access Directive). 9 – In August 2002 the Czech Government privatised Český Telecom, the dominant operator in which the State held a majority shareholding. 10 – The legal basis of the order was Article 40(2) and Article 40(5) of Law No 151/2000. 11 – Proust, M.: À la recherche du temps perdu III, La prisonnière, Ed. Gallimard, Bibliothèque de la Plèiade, 1988, p. 762. 12 – Case C-302/04 [2006] ECR I‑371, paragraphs 35 to 37. See, to the same effect, the order of 9 February 2006 in Case 261/05 Lákep and Others (not published in the ECR), paragraphs 17 to 21. 13 – Case C‑321/97 Andersson and Wåkerås-Andersson [1999] ECR I‑3551. 14 – The first measure of the Czech Telecommunications Office is dated 30 April 2004, the day before the date of accession. 15 – 9 September 2004. 16 – Case C‑145/03 Keller [2005] ECR I‑2529, paragraph 33. 17 – Case C‑62/93 BP Supergas [1995] ECR I‑1883, paragraph 10; Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59; Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑326/00 IKA [2003] ECR I‑1703, paragraph 27. 18 – Case C‑355/97 Beck and Bergdorf [1999] ECR I‑4977, paragraph 22. 19 – Stated in general terms in Case 6/64 Costa v ENEL [1964] ECR 585, and on the subject of directives in Case 148/78 Ratti [1979] ECR 1629. 20 – In accordance with Ratti, on expiry of the time fixed for the coming into force of a directive, a Member State cannot apply its own unaltered law to a person who has complied with the provisions of the Community legislation, which means that national laws which contradict the latter are of no effect. 21 – Case 8/81 Becker [1982] ECR 53, paragraphs 24 and 25. 22 – This follows from the reasoning of Case 152/84 Marshall [1986] ECR 723, paragraph 52 repeated in Case C‑389/95 Klattner [1997] ECR I‑2719, paragraph 33. 23 – Paragraph 33 of Klattner, which refers to Case 28/67 Molkerei [1967] ECR 143, and paragraph 18 of Joined Cases C-246/94 to C-249/94 Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I‑4373. 24 – Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835. 25 – Marshall paragraph 49; Case 80/86 Kolpinghuis Nijmegen [1987] ECR I‑3969, paragraph 9; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 24; Case C‑192/94 El Corte Inglés [1996] ECR I-1281, paragraphs 16 and 17; and Pfeiffer, paragraphs 108 and 109. 26 – Case C‑201/02 [2004] ECR I‑723. 27 – Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40). 28 – It seems obvious that, given the lack of such a characteristic, it is not appropriate, in the present case, to advise the national court that, in reliance on the ‘principle of consistent interpretation’ (Case C‑106/89 Marleasing [1990] ECR I‑4135), it should do violence to the meaning of Law No 151/2002 so as to create, by the judicial process, a procedure (the market analysis) which that Law excludes, since that principle is restricted inter alia by the qualification that it is proper to avoid praeter legem interpretations. Case C‑168/95 Arcaro [1996] ECR I‑4705 underlined that Community law does not incorporate any mechanism which allows the national court to disregard provisions of national law which are contrary to those of a Directive which cannot be relied on before the national court (paragraph 43). Further, it must not be forgotten that, as I have observed, the Czech regulations and the Community regulations (both the original and current) are substantially the same in authorising the competent authorities to impose obligations of interconnection on dominant undertakings, to a degree that the discrepancies are restricted to matters of form. 29 – Lecourt, R.: Le juge devant le Marché commun, Ed. Institut Universitaire des Hautes Études Internationales. Geneva, 1970, p. 50. 30 – Lagrange, M.: ‘L’action préjudicielle dans le droit interne des États membres et en droit communautaire’,Revue trimestrielle de droit européen, 1974, p. 268. 31 – De Richemont, J.: L’intégration du droit communautaire dans l’ordre juridique interne, Ed. Librairie du Journal des Notaires et des Avocats, Paris, 1975, p. 41 et seq. 32 – It appears relevant to add that, in the context of the judicial cooperation of Article 234 EC, it falls to the Court of Justice to give to the referring Court a solution which is adequate for the resolving of the dispute (Case C‑334/95 Krüger [1997] ECR I‑4517 paragraph 22, Case C‑88/99 Roquette Frères [2000] ECR I‑10465, paragraph 18), reformulating where appropriate the question referred to it (Case C‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraph 32, Case C‑210/04 FCE Bank [2006] ECR I‑2803, paragraph 21).