ORDER OF THE GENERAL COURT (First Chamber)
21 January 2020 (*)
(Action for annulment — Internal market for electronic communications — Retail price charged to consumers for regulated intra-EU communications — Regulation (EU) 2018/1971 — Legislative act — Applicants not individually concerned — Inadmissibility)
In Case T‑162/19,
Telefónica, SA, established in Madrid (Spain),
Telefónica de España, SAU, established in Madrid,
represented by F. González Díaz, B. Langeheine and J. Blanco Carol, lawyers,
applicants,
v
European Parliament, represented by R. van de Westelaken, M. Peternel and C. Biz, acting as Agents,
and
Council of the European Union, represented by O. Segnana and I. Gurov, acting as Agents,
defendants,
APPLICATION on the basis of
Article 263 TFEU for the partial annulment of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ 2018 L 321, p. 1),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, N. Półtorak (Rapporteur) and O. Porchia, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1        Telefónica, SA, the parent company of the Telefónica group, and its subsidiary Telefónica de España, SAU (together referred to as ‘Telefónica’ or ‘the applicant’), are companies incorporated under Spanish law providing publicly
available number-based interpersonal communications services. On that basis, Telefónica’s activities come within the scope of the EU legislation applicable to that sector, in particular, Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ 2018 L 321, p. 1) (‘the contested regulation’ or ‘the contested measure’).
2        The contested regulation establishes price caps which regulated intra-EU communications must not exceed. In particular, under Article 50 of the contested regulation, retail prices charged to consumers for regulated intra-EU communications may not exceed EUR 0.19 per minute for calls and EUR 0.06 per SMS message.
3        Those caps correspond to those which apply to retail prices charged to consumers in respect of regulated communications when roaming in the European Union, as defined by Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ 2012 L 172, p. 10).
4        By application lodged at the Court Registry on 11 March 2019, the applicant brought the present action. The applicant claims that the Court should:
–        declare the action admissible;
–        annul Article 50 of the contested regulation;
–        order the European Parliament and the Council of the European Union to pay the costs.
5        By separate documents lodged at the Court Registry on 27 and 28 May 2019, respectively, the Council and the Parliament raised pleas of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
6        The Council contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
7        The Parliament contends that the Court should:
–        dismiss the action as inadmissible;
–        in the alternative, if the Court rejects the plea of inadmissibility or decides to reserve its decision on admissibility until it rules on the substance of the case, allow it a further period to submit its observations, including its observations as to whether the action is well founded;
–        order the applicant to pay the costs.
8        By documents lodged at the Court Registry on 18 June and 8 July 2019, respectively, the Kingdom of the Netherlands and the European Commission applied for leave to intervene in the present proceedings in support of the forms of order sought by the Parliament and the Council.
9        On 17 July 2019, the applicant submitted its observations on the pleas of inadmissibility raised by the Parliament and the Council, in which it claims that the Court should:
–        dismiss those pleas and declare the action admissible;
–        in the alternative, reserve the decision on admissibility to the final judgment;
–        open the oral part of the procedure on the issue of admissibility;
–        annul Article 50 of the contested regulation;
–        order the Parliament and the Council to pay the costs.
Law
10      Under Article 130(1) of the Rules of Procedure, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
11      In the present case, the Parliament and the Council submit that the contested measure is a legislative act and that therefore it is not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU. Furthermore, the Parliament and the Council consider that the applicant does not have standing to bring proceedings in that it is neither directly nor individually concerned by the contested regulation. Thus, the Parliament and the Council consider that the present action is inadmissible.
12      The applicant, which considers that its action is admissible, claims that the contested regulation must be regarded, in essence, as a regulatory act which does not entail implementing measures, since it has the direct consequence of imposing a cap on the retail prices charged to consumers by mobile telephone operators in respect of communications placed by those
consumers within the European Union. The applicant also takes the view that that measure is of direct and individual concern to it, since it applies only to a relatively limited number of operators, to which it belongs.
13      As a preliminary point, it should be recalled that, in accordance with the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
14      The fourth paragraph of Article 263 TFEU thus distinguishes three situations in which an action for annulment brought by a natural or legal person may be declared admissible and it is necessary to examine whether one of those situations exists in the present case.
15      It must be stated at the outset that, as the applicant is not the addressee of the contested regulation, it does not have a right of action by virtue of the first situation referred to in the fourth paragraph of Article 263 TFEU. It is therefore necessary to examine whether the applicant has a right of action by virtue of one of the other two situations referred to in the fourth paragraph of Article 263 TFEU. In the present case, the Court considers it appropriate to examine first whether the applicant has a right of action by virtue of the third situation referred to in the fourth paragraph of Article 263 TFEU. In that context, it is necessary to consider the nature of the contested measure.
The nature of the contested measure
16      According to the case-law, the expression ‘regulatory act’ within the meaning of the fourth paragraph of Article 263 TFEU does not encompass legislative acts (judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 61, and of 25 October 2011, Microban International and Microban (Europe) v Commission, T‑262/10, EU:T:2011:623, paragraph 21).
17      In that regard, it must be borne in mind that the distinction between a legislative act and a regulatory act is based on the criterion of the procedure, legislative or not, which led to its adoption (order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 65).
18      Article 289(1) and (3) TFEU provides that legal acts adopted under the procedure defined in Article 294 TFEU, referred to as ‘the ordinary legislative procedure’, are to constitute legislative acts.
19      In the present case, it is apparent from the citations in the preamble to the contested regulation that the legal basis of that regulation is Article 114 TFEU, concerning the approximation of laws, and that it was adopted jointly by the Parliament and the Council under the ordinary legislative procedure.
20      It follows that the contested regulation, in so far as it was adopted in accordance with the ordinary legislative procedure, is a legislative act and not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
21      It should be added that, contrary to what is claimed by the applicant, the question of the nature of the contested measure, in the light of Article 263 TFEU, is a separate question from that of the substantive legality of that act, with the result that it must be answered, without it being necessary to examine the pleas in law and arguments of the applicant seeking the annulment of that act.
22      Consequently, the applicant does not have a right of action against the contested regulation by virtue of the third situation referred to in the fourth paragraph of Article 263 TFEU.
23      It follows that the present action is admissible only in the event that the applicant has standing to bring proceedings on the ground that it is directly and individually concerned by the contested regulation, by virtue of the second situation referred to in the fourth paragraph of Article 263 TFEU.
24      The Court considers it appropriate to begin the examination of the applicant’s standing to bring proceedings by virtue of that situation by examining whether it is individually concerned.
Whether the applicant is individually concerned
25      It should be noted that it is apparent from recital 51 of the contested regulation that that regulation contains rules designed to ensure, throughout the European Union, consistent, timely and most effective protection of consumers negatively affected by the significant price differences of intra-EU communications. To that end, Article 50 of the contested regulation provides as follows:
‘Regulation (EU) 2015/2120 is amended as follows:
...
(2)      in Article 1, the following paragraph is added:
“3.      This Regulation also lays down common rules to ensure that consumers are not charged excessive prices for making number-based interpersonal communications originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number in another Member State.”
...
(3)      in the second paragraph of Article 2, the following points are added:
“(3)      ‘regulated intra-EU communications’ means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of another Member State, and which is charged wholly or partly based on actual consumption;”
...
(4)      the following Article is inserted:
“Article 5a
Retail charges for regulated intra-EU communications
1.      From 15 May 2019, any retail price (excluding VAT) charged to consumers for regulated intra-EU communications shall not exceed EUR 0.19 per minute for calls and EUR 0.06 per SMS message.”
...’
26      In their pleas of inadmissibility, the Parliament and the Council assert that the applicant is not individually concerned by the contested regulation. They consider that it does not belong to a limited class of traders and that it has not put forward any specific circumstance which could individually distinguish it under the rules identified in the case-law.
27      The applicant submits that it is individually concerned by the contested regulation, in so far as it is in a particular factual situation which distinguishes it from other providers of electronic communications services.
28      First, the applicant notes that the measures introduced by Article 50 of the contested regulation are particularly disadvantageous for suppliers, such as itself, which issue full or partial invoices on the basis of customers’ actual consumption. According to the applicant, Article 50 of the contested regulation does not apply to all providers of international calls within the European Union, since both internet telephony, which is developing, but is not a number-based communications service, and bundled-only service providers are excluded from its scope.
29      Next, the applicant submits that the electronic communications market is in decline and includes a relatively stable number of operators, with the result that the prospect of an increase in the number of affected operators is unlikely.
30      Lastly, the applicant maintains that, unlike operators domiciled in other Member States, it is not in a position to challenge the validity of the contested regulation, directly or indirectly, before the Spanish courts.
31      For all of those reasons, the applicant takes the view that the contested regulation applies to a limited number of defined or definable operators in so far as it affects the legal situation of a discrete category of market operators, namely international call providers within the European Union, which issue invoices based primarily on customers’ actual consumption. Since it claims to form part of that limited class of economic operators, the applicant considers that it is individually concerned by the contested measure.
32      In that regard, it should be noted that a physical or legal person is individually concerned by an act which is not addressed to that person only if that act affects that person by reason of certain attributes which are peculiar to that person or by reason of circumstances in which that person is differentiated from all other persons and by virtue of those factors distinguishes that person individually just as in the case of the person addressed (see, to that effect, judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 31).
33      However, it should be borne in mind that the fact that a provision is, by its nature and scope, a provision of general application inasmuch as it applies to the economic operators concerned in general, does not of itself prevent that provision from being of individual concern to some of those operators (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 58, and of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29).
34      According to the case-law, where the contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of that group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (judgment of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59).
35      It must therefore be determined whether the contested measure is of general application and, where appropriate, whether it affects the applicant as a member of a group of persons who were identified or identifiable at the time when it was made and by reference to criteria specific to the members of that group.
36      According to the case-law, an act is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 29 and the case-law cited).
37      In that regard, first, it must be recalled that, under the second paragraph of Article 288 TFEU, a regulation such as the contested measure is of general application, is binding in its entirety and is directly applicable in all Member States.
38      Secondly, as regards the criteria established by the case-law cited in paragraph 36 above, it should be noted that the contested regulation lays down specific requirements with regard to the consistent implementation of the regulatory framework for electronic communications within the European Union with general application, with the aim of ensuring the approximation of the laws of the Member States in that field. The same is true of Article 50 of that regulation, criticised by the applicant, which fixes the price caps that regulated intra-EU communications must not exceed.
39      Furthermore, the situations and persons to which the contested regulation applies are objectively determined, since it is stated in Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and
retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation No 531/2012 (OJ 2015 L 310, p. 1), as amended by the contested regulation, that it covers, inter alia, the activity of providing publicly available electronic communications services. The same is true of Article 50 of the contested regulation, which lays down the price caps that regulated intra-EU communications must not exceed.
40      It is apparent from the foregoing that the categories of persons to whom the contested regulation applies, and in particular
Article 50 thereof, are also envisaged generally and in the abstract.
41      It follows that Article 50 of the contested regulation is of general application.
42      In the present case, the applicant is concerned by the contested regulation solely in its capacity as a provider of regulated intra-EU communications, that is to say, on the basis of a situation which is objectively envisaged by the contested regulation, without the legislature having taken any account of the individual situation of those economic operators. In addition, the tariff requirements concerning the caps on the prices which providers of intra-EU communications are authorised to charge consumers are set out in general terms and apply without distinction to any economic operator who comes within the scope of the contested regulation.
43      It is clear that the persons affected by the requirements set out in Article 50 of the contested regulation were neither identified nor identifiable at the time when that regulation was adopted.
44      In that regard, it must be observed that the applicant does not show, or indeed
even claim, that the number of providers of regulated intra-EU communications, concerned by the contested regulation and of which it forms part, is not subject to change. The fact that a market, such as that at issue in the present case, is regulated is not sufficient to preclude the possibility that the group of operators active on that market may change.
45      Thus, an unknown number of traders may be added to the category of providers of regulated intra-EU communications to which the applicant belonged when the contested regulation was adopted, such that that category cannot be regarded as a limited class. On the contrary, it is thus an indeterminate and indeterminable group of operators that is concerned, the class of which may increase in size after adoption of the contested regulation (see, to that effect, order of 23 November 2015, Beul v Parliament and Council, T‑640/14, EU:T:2015:907, paragraph 45 and the case-law cited).
46      Traders belonging to an open category of this kind are not, however, individually concerned by the measure at issue (see, to that effect, order of 23 November 2015, Beul v Parliament and Council, T‑640/14, EU:T:2015:907, paragraph 46 and the case-law cited).
47      Furthermore, it must be pointed out that the applicant does not put forward any factor capable of distinguishing it individually. It refers to the alleged uniqueness of its method of invoicing, based primarily on customers’ actual consumption. There is, however, nothing in the documents before the Court to indicate that that method is particularly unique in the electronic communications sector.
48      Moreover, the factual context of the present case is different from that of the case which gave rise to the judgment of 16 May 1991, Extramet Industrie v Council (C‑358/89, EU:C:1991:214), relied on by the applicant in support of the claim that, by reason of its position on the market, the measures imposed by Article 50 of the contested regulation are particularly disadvantageous for it. In that case, the applicant was differentiated by the fact that it was the largest importer of the product which was the subject of the anti-dumping measure at issue and was, at the same time, the end user of that product. In addition, its business activities depended to a very large extent on those imports and were seriously affected by the regulation at issue,
given the limited number of manufacturers of the product concerned and because of the difficulties which it encountered in obtaining supplies from the sole EU producer, which, moreover, was its main competitor for the processed product. In the present case, the situation is not one in which the applicant is affected by difficulties in obtaining supplies of a product which it processes for the purpose of marketing it within the European Union and on which its business activities depend to a very large extent, but rather a situation concerning the establishment of price caps which regulated intra-EU communications must not exceed. The applicant has not established, or even claimed, that such a cap is liable to prevent it from obtaining supplies of the products on which its economic activity to a very large extent depends. Nor does the applicant show that such a cap is liable to restrict its economic profitability in a particular way by reason of certain attributes which are specific to it or by reason of circumstances in which it is differentiated from any other operator carrying on the activity of providing publicly available electronic communications services (see paragraph 47 above).
49      The factual context of the present case also differs from that of the case which gave rise to the judgment of 18 May 1994, Codorniu v Council (C‑309/89, EU:C:1994:197), on which the applicant also relies. In that case, the applicant was differentiated from all other operators by the fact that it was the proprietor of the trade mark ‘Grand Crémant de Codorniu’ and that the regulation at issue prevented it from using that trade mark, since it reserved the use of the term ‘crémant’ to French and Luxembourg producers alone. The present case, however, does not concern the use of an established right specific to the applicant, but, as has already been pointed out in paragraph 48 above, the establishment of price caps that regulated intra-EU communications must not exceed and which apply to an indeterminate and indeterminable group of economic operators, which may increase in size after the contested regulation has been adopted.
50      In the light of those considerations, it must be concluded that the applicant is not individually concerned by Article 50 of the contested regulation.
51      Consequently, as the criteria of direct and individual concern are cumulative requirements of admissibility, where this is examined with regard to the second situation envisaged by the fourth paragraph of Article 263 TFEU, it is unnecessary to consider whether the applicant is directly concerned by the contested regulation.
52      That conclusion cannot be called into question by the applicant’s argument, set out in paragraph 30 above, according to which, in essence, it derives its standing to bring proceedings from the alleged fact that it would be impossible for it to challenge the validity of the contested regulation directly or indirectly before the Spanish courts. That circumstance is not such as to distinguish the applicant individually from any other economic operator active on the same market in regard to the contested regulation and, in any event, does not differentiate it from its direct competitors who are also domiciled in Spain. In reality, it must be held
that, by that line of argument, the applicant is seeking only to assert a right to an effective remedy, which the Court will examine in paragraphs 55 to 57 below.
53      Consequently, as the criteria of direct and individual concern are cumulative requirements of admissibility, where this is examined with regard to the second situation referred to in the fourth paragraph of Article 263 TFEU, it is unnecessary to consider whether the applicant is directly concerned by the contested regulation.
54      It follows from all of the foregoing that the applicant does not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU.
The applicant’s right to an effective remedy
55      As part of its argument that it had standing to bring proceedings on the basis that it is impossible for it to challenge the validity of the contested regulation, directly or indirectly, before the Spanish courts, the applicant invokes
Article 47 of the Charter of Fundamental Rights of the European Union and infers from it that, in the light of that provision, its right to an effective remedy means that the present action is admissible.
56      In that regard, it suffices to note that, according to the case-law, Article 47 of the Charter of Fundamental Rights is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty.
57      It follows that the applicant cannot validly claim that the present action for annulment should be admissible on the basis of Article 47 of the Charter of Fundamental Rights, when it does not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU.
58      Accordingly, the present head of claim must be rejected.
59      In the light of all of the foregoing considerations, the plea of inadmissibility put forward by the Parliament and the Council must be upheld, without a decision being taken on the substance of the case, and, accordingly, the action must be dismissed as inadmissible.
60      It also follows that there is no longer any need to adjudicate on the applications to intervene submitted by the Kingdom of the Netherlands and the Commission, in accordance with Article 142(2) of the Rules of Procedure.
Costs
61      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Consequently, the applicant must bear its own costs and pay those incurred by the Parliament and the Council, in accordance with the forms of order sought by those parties, with the exception of the costs relating to the applications to intervene.
62      Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before an application to intervene has been decided upon, the applicants for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Consequently, the Kingdom of the Netherlands and the Commission must bear their own costs relating to their respective applications to intervene. In addition, the applicant, the Parliament and the Council must each bear their own respective costs relating to those applications to intervene.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      There is no longer any need to adjudicate on the applications to intervene of the Kingdom of the Netherlands and the European Commission.
3.      Telefónica, SA and Telefónica de España, SAU shall bear their own costs and shall pay the costs incurred by the European Parliament and the Council of the European Union, with the exception of those relating to the applications to intervene.
4.      Telefónica, Telefónica de España, the Parliament, the Council, the Kingdom of the Netherlands and the Commission shall each bear their own respective costs relating to the applications to intervene.
Luxembourg, 21 January 2020.
E. Coulon
H. Kanninen
Registrar
President
*      Language of the case: English.