Opinion of the Advocate General — ECLI:EU:C:2016:310
Date: 2016-04-28
Language of the case: Dutch
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 15 September 2016 1. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directives 2002/19 and 2002/21 — Review by the national court of a decision of a national regulatory authority imposing tariff obligations on the call termination market and departing from a Commission recommendation — Absence of power to depart from that recommendation — Limits — Grounds linked to the specific characteristics of the market (Art. 288 TFEU; European Parliament and Council Directives 2002/19, Arts 8 and 13 and 2002/21, Art. 4(1); Commission Recommendation 2009/396) 2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directives 2002/19 et 2002/21 — Review by the national court of a decision of a national regulatory authority imposing tariff obligations on the call termination market — Assessment of the proportionality — Lawfulness — No obligation to show that the objectives set out in those directive have actually been achieved (European Parliament and Council Directives 2002/19, Art. 8(4) and 13 and 2002/21, Arts 6, 7 and 8; Commission Recommendation 2009/396) 1. Article 4(1) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140, read in conjunction with Articles 8 and 13 of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140, must be interpreted as meaning that a national court, hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority (NRA) for the provision of fixed and mobile call termination services, may depart from Commission Recommendation 2009/396 on the regulatory treatment of fixed and mobile termination rates in the European Union advocating the ‘pure Bulric’ (Bottom-Up Long-Run Incremental Costs) cost model as the appropriate price regulation measure in the termination market only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question. It follows from Article 4(1) of the Framework Directive that the right of appeal guaranteed by that provision must be based on an effective appeal mechanism which allows the merits of the case to be duly taken into account. Furthermore, this provision clarifies that the body which is competent to deal with such an action, which may be a court, is to have the appropriate expertise to enable it to carry out its functions effectively. Thus, when hearing a case concerning the legality of a tariff obligation imposed by the NRA under Articles 8 and 13 of the Access Directive, a national court may depart from Recommendation 2009/396. Nevertheless, even if recommendations are not intended to produce binding effects, the national courts are bound to take them into consideration for the purpose of deciding disputes submitted to them, in particular where the recommendations cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions. (see paras 39, 40-43, operative part 1) 2. EU law must be interpreted as meaning that a national court hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority (NRA) for the provision of fixed and mobile call termination services can assess the proportionality of that obligation in the light of the objectives set out in Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), as amended by Directive 2009/140, and Article 13 of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), as amended by Directive 2009/140, and take into account the fact that the obligation has the effect of promoting the interests of end-users on a retail market which has not been earmarked for regulation It follows from Articles 8 (4) and 13 of the Access Directive and Article 8 of the Framework Directive that where an NRA adopts a decision imposing such tariff obligations on operators, it must ensure that they meet all the objectives set out in Article 8 of the Framework Directive and Article 13 of the Access Directive, namely that, on the one hand, they are based on the nature of the problem identified, proportionate and justified in the light of the objectives set out in Article 8 of the Framework Directive and may only be imposed following consultation in accordance with Articles 6 and 7 of the Framework Directive and, on the other, that they aim to promote economic efficiency, sustainable competition and gives the maximum benefit to end-users. Similarly, in the context of judicial review of that decision, a national court must ensure that the NRA complies with all the requirements deriving from the objectives set out in Articles 8 of the Framework Directive and 13 of the Access Directive. In that regard, the fact that a tariff obligation is founded on Recommendation 2009/396 does not deprive the national court of its power to review the proportionality of such obligations with the objectives laid down in those articles. On the other hand, a national court may not, when carrying out a judicial review of a decision of the NRA, require that authority to demonstrate that the obligation actually attains the objectives set out in Article 8 of the Framework Directive. Placing such a burden of proof on an NRA would disregard the fact that adoption of regulatory obligations is based on a prospective analysis of market developments, which takes as a reference, in order to address competition concerns, the behaviour and/or the costs of an efficient operator. Such proof, relating to measures focused on the future, is impossible or excessively difficult to adduce. (see paras 48-51, 55, 58-61, operative part 2)