Judgment — ECLI:EU:C:2016:9
Date: 2016-01-14
Language of the case: German
Court formation: Third Chamber
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 14 January 2016 1. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/19 — Articles 8(2) and 13(1) — Directive 2002/21 — Article 16(2) — Power of national regulatory authorities to require an operator which has been designated as having significant market power to obtain authorisation for its tariffs — Obligation may be the subject of a number of consolidation procedures (European Parliament and Council Directives 2002/19, Arts 8(2) and 13(1) and 2002/21, Arts 7(3) and 16(2) and (4)) 2. EU law — Interpretation — Methods — Literal, systematic and teleological interpretation 3. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directives 2002/19 and 2002/21 — Authorisation by a national regulatory authority of proposed mobile call termination tariffs — Measure covered by obligations as regards price control subject to application of the consolidation procedure laid down in Article 7(3) of Directive 2002/21 – Effect on trade between the Member States (European Parliament and Council Directives 2002/19, Arts 8 and 13(1) and 2002/21, Art. 7(3)(a) and (b)) 1. It follows from a combined reading of Articles 7(3) and 16(4)of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive) and Articles 8(2) and 13(1) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) that, where a national regulatory authority (NRA) proposes to adopt, in respect of an operator designated as having significant power on a given market, a measure which imposes ‘obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access’, which affect trade between Member States, that NRA is required to carry out the consolidation procedure provided for in Article 7(3). It is irrelevant in that regard that that consolidation procedure has already previously been carried out, in the context of a market analysis procedure carried out in accordance with Article 16 of the Framework Directive, following which obligations may already have been imposed on the operator concerned, given that, by providing, in Article 16(2) that the NRA may be required to decide whether ‘to impose, maintain, amend or withdraw’ the obligations provided for inter alia in Article 8 of the Access Directive and imposed on an undertaking, the Framework Directive expressly provides that a single obligation may be the subject of a number of consolidation procedures, leading, as appropriate, to the imposition, maintenance, amending or withdrawal of that obligation. (see paras 35, 36) 2. See the text of the decision. (see paras 40) 3. Article 7(3) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that, when an national regulatory authority has required an operator which has been designated as having significant market power to provide mobile call termination services and has made the fees charged for this subject to authorisation following the procedure laid down in that provision, that national regulatory authority is required to carry out the procedure again before each authorisation of those fees to that operator, where that authorisation is likely to affect trade between the Member States within the meaning of that provision. It thus follows from the wording of Article 13(1) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) that the issue of a mobile call termination fees authorisation is one of the obligations relating to price control referred to in that provision which the NRAs are, by virtue of Article 8(2) of that Directive, entitled to impose on an operator with significant power on the mobile telephone market and which, if they are proposed and in so far as they will affect trade between the Member States, can be imposed, pursuant to Article 8(4) thereof, only following the procedure provided for in Article 7 of the Framework Directive. That interpretation, which does not run counter to the principles of subsidiarity and proportionality since it does not have the effect of conferring a power on the Commission to take it upon itself to set the fees for electronic communications services, is corroborated by both the context of which that provision forms part and the aims pursued by both the Access Directive and the Framework Directive. All the aims of harmonisation, coordination, cooperation and transparency, pursued by the Framework Directive and the Access Directive, would be compromised if the issue of an authorisation of mobile call termination fees were to avoid the application of the procedure laid down in Article 7(3) of the Framework Directive. Furthermore, neither the wording of those provisions, the general scheme of the Access Directive or of the Framework Directive, or the aims which they pursue enable the view to be taken that the EU legislature intended to make a distinction, among the obligations relating to price control referred to in Article 13(1) of the Access Directive, between measures referred to as ‘basic’, ‘fundamental’ or ‘regulatory’, which must be subject to the procedure laid down in Article 7(3) of the Framework Directive, and measures referred to as ‘implementing’ the former, which may avoid that procedure. As regards whether the issue of a mobile call termination fees authorisation would affect trade between the Member States within the meaning of Article 7(3)(b) of the Framework Directive, a measure proposed by an NRA has such an effect on trade between Member States, within the meaning of that provision, if it may have, other than in an insignificant manner, an influence, direct or indirect, actual or potential, on that trade. (see paras 44, 45, 47, 48, 50, 51, 54, 55, 58, operative part)