Opinion of the Advocate General — ECLI:EU:C:2016:503
Date: 2016-06-30
Language of the case: Spanish
Subject matter: Telecommunications;Data protection
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Second Chamber), 19 October 2016 1. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — National regulatory authority — National legislation providing for the merger of the national regulatory authority with other sectoral regulatory authorities — Lawfulness — Conditions (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140, Arts. 2(g) and (3)) 2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — National regulatory authority — Dismissal of the President and a board member of the authority before their term of office has expired following the merger of that authority with other regulatory authorities — Ground for dismissal not provided for under national law — Not permissible (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140, Art. 3(3a)) 1. Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140 (Framework Directive), is to be interpreted as not precluding, in principle, national legislation which entails the merger of a national regulatory authority, within the meaning of the Framework Directive, with other national regulatory authorities, such as the authorities responsible for competition, the postal sector and the energy sector, in order to create a multisectoral regulatory body responsible, inter alia, for the tasks entrusted to national regulatory authorities, within the meaning of that directive, provided that, in performing those tasks, that body meets the requirements of competence, independence, impartiality and transparency laid down by that directive and that an effective right of appeal is available against its decisions to a body independent of the parties involved, which is a matter to be determined by the national court. Although Member States enjoy institutional autonomy as regards the organisation and the structuring of their national 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. Accordingly, in the context of an institutional reform a Member State may assign to a multisectoral regulatory body the tasks incumbent on national regulatory authorities under the Framework Directive and the Specific Directives only if that body, in the performance of those tasks, meets the organisational and operational requirements to which those directives subject those authorities. (see paras 30, 31, 38, operative part 1) 2. Article 3(3a) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140 (Framework Directive), is to be interpreted as precluding — on the sole ground that an institutional reform has taken place involving the merger of a national regulatory authority responsible for ex-ante market regulation or for resolution of disputes between undertakings with other national regulatory authorities in order to create a multisectoral regulatory body responsible, inter alia, for the tasks entrusted to national regulatory authorities, within the meaning of that directive — the dismissal of the President and a board member, members of the collegiate body running the merged national regulatory authority, before the expiry of their terms of office, in the absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of such members. The intention of the EU legislature was, by means of Directive 2009/140 and as stated in recital 13 thereof, to strengthen the independence of national regulatory authorities in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. The attainment of that objective of strengthening the independence and impartiality of national regulatory authorities now pursued by the Framework Directive, which finds expression in Article 3(3a) thereof, would be jeopardised if, merely as a result of an institutional reform, it were possible to bring to an immediate and premature end the term of office of one or more members of the collegiate body running the authority in question. If that were permissible, the risk of immediate dismissal on grounds other than those laid down in advance by national law, which may be faced by even a single member of such a collegiate body, may give rise to reasonable doubt as to the neutrality of the national regulatory authority concerned and its imperviousness to external factors and jeopardise its independence, impartiality and authority. However, given that, as long as the objectives and obligations laid down by the Framework Directive are fully complied with, Member States enjoy institutional autonomy as regards the organisation and the structuring of their national regulatory authorities, the need to have due regard for the impartiality and independence of the head of such an authority responsible for ex ante market regulation or resolution of disputes between undertakings or, where applicable, the members of the collegiate body fulfilling that function, cannot prevent the implementation of an institutional reform when the term of office of such persons is not yet completed. However, in order to comply with the requirements laid down in Article 3(3a) of the Framework Directive, it is for the Member State concerned to lay down rules which guarantee that their dismissal before the expiry of their term of office does not jeopardise the independence and impartiality of the persons concerned. (see paras 45, 47, 49-52, operative part 2)