62006TO0109_EN
Parties
Grounds
Operative part
Parties
In Case T‑109/06,
Vodafone España SA, established in Madrid (Spain),
Vodafone Group plc, established in Newbury, Berkshire (United Kingdom),
represented by J. Flynn QC, E. McKnight and K. Fountoukakos-Kyriakakos, Solicitors,
applicants,
v
Commission of the European Communities,
represented by M. Shotter and K. Mojzesowicz, acting as Agents,
defendant,
supported by
Kingdom of Spain,
represented by M. Muñoz Pérez, abogado del Estado,
intervener,
APPLICATION for annulment of the decision allegedly contained in the letter addressed by the Commission on 30 January 2006 to the Comisión del Mercado de las Telecomunicaciones, on the basis of Article 7(3) 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) (OJ 2002 L 108, p. 33),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of M. Vilaras, President, E. Martins Ribeiro and K. Jürimäe, Judges,
Registrar: E. Coulon,
makes the following
Order
Grounds
Legal framework
1. Directive 2002/21/EC
1. On 7 March 2002 the European Parliament and the Council of the European Union adopted Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33). As provided in Article 1(1), that directive ‘establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services[,] … lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community’.
2. Article 4 of Directive 2002/21 provides for a right of appeal against decisions adopted by national regulatory authorities (‘NRAs’) in the following terms:
‘1. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a[n] [NRA] has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. Pending the outcome of any such appeal, the decision of the [NRA] shall stand, unless the appeal body decides otherwise.
2. Where the appeal body referred to in paragraph 1 is not judicial in character, written reasons for its decision shall always be given. Furthermore, in such a case, its decision shall be subject to review by a court or tribunal within the meaning of Article 234 of the Treaty.’
3. In accordance with Article 5(2) of Directive 2002/21, ‘Member States shall ensure that [NRAs] provide the Commission, after a reasoned request, with the information necessary for it to carry out its tasks under the Treaty’.
4. Article 6 of Directive 2002/21, entitled ‘Consultation and transparency mechanism’, provides:
‘Except in cases falling within Articles 7(6), 20 or 21 Member States shall ensure that where [NRAs] intend to take measures in accordance with this Directive … which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period …’
5. Article 7 of Directive 2002/21, entitled ‘Consolidating the internal market for electronic communications’, provides:
‘1. In carrying out their tasks under this Directive …, [NRAs] shall take the utmost account of the objectives set out in Article 8, including in so far as they relate to the functioning of the internal market.
2. [NRAs] shall contribute to the development of the internal market by cooperating with each other and with the Commission in a transparent manner to ensure the consistent application, in all Member States, of the provisions of this Directive … . To this end, they shall, in particular, seek to agree on the types of instruments and remedies best suited to address particular types of situations in the market place.
3. In addition to the consultation referred to in Article 6, where a[n] [NRA] intends to take a measure which:
(a) falls within the scope of Articles 15 or 16 of this Directive …, and
(b) would affect trade between Member States,
it shall at the same time make the draft measure accessible to the Commission and the [NRAs] in other Member States, together with the reasoning on which the measure is based … and inform the Commission and other [NRAs] thereof. [NRAs] and the Commission may make comments to the [NRA] concerned only within one month or within the period referred to in Article 6 if that period is longer. The one-month period may not be extended.
4. Where an intended measure covered by paragraph 3 aims at:
(a) defining a relevant market which differs from those defined in the recommendation in accordance with Article 15(1), or
(b) deciding whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under Article 16 … (4) or (5),
and would affect trade between Member States and the Commission has indicated to the [NRA] that it considers that the draft measure would create a barrier to the single market or if it has serious doubts as to its compatibility with Community law and in particular the objectives referred to in Article 8, then the draft measure shall not be adopted for a further two months. This period may not be extended. Within this period the Commission may, in accordance with the procedure referred to in Article 22(2), take a decision requiring the [NRA] concerned to withdraw the draft measure. This decision shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not be adopted together with specific proposals for amending the draft measure.
5. The [NRA] concerned shall take the utmost account of comments of other [NRAs] and the Commission and may, except in cases covered by paragraph 4, adopt the resulting draft measure and, where it does so, shall communicate it to the Commission.
6. In exceptional circumstances, where a[n] [NRA] considers that there is an urgent need to act, by way of derogation from the procedure set out in paragraphs 3 and 4, in order to safeguard competition and protect the interests of users, it may immediately adopt proportionate and provisional measures. It shall, without delay, communicate those measures, with full reasons, to the Commission and the other [NRAs]. A decision by the [NRA] to render such measures permanent or extend the time for which they are applicable shall be subject to the provisions of paragraphs 3 and 4.’
6. Article 8(2)(b) of Directive 2002/21 provides that the NRAs ‘shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia … ensuring that there is no distortion or restriction of competition in the electronic communications sector’.
7. Article 8(3)(d) of Directive 2002/21 adds that ‘[t]he [NRAs] shall contribute to the development of the internal market by inter alia … cooperating with each other and with the Commission in a transparent manner to ensure the development of consistent regulatory practice and the consistent application of this Directive’.
8. Article 14 of Directive 2002/21 defines the notion of an undertaking having significant market power. To that effect, Article 14(2) of Directive 2002/21 provides that ‘[a]n undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers’. That provision goes on to state that ‘[NRAs] shall, when assessing whether two or more undertakings are in a joint dominant position in a market, act in accordance with Community law and take into the utmost account the guidelines on market analysis and the assessment of significant market power published by the Commission pursuant to Article 15’.
9. Article 15 of Directive 2002/21 concerns the market definition procedure. Under Article 15(1) of Directive 2002/21, ‘the Commission shall adopt a recommendation on relevant product and service markets (hereinafter “the recommendation”)’. It is stated that ‘[t]he recommendation shall identify … those product and service markets within the electronic communications sector, the characteristics of which may be such as to justify the imposition of regulatory obligations’ and that ‘[t]he Commission shall define markets in accordance with the principles of competition law’. Article 15(2) of Directive 2002/21 provides that the ‘Commission shall publish, at the latest on the date of entry into force of this Directive, guidelines for market analysis and the assessment of significant market power (hereinafter “the guidelines”) which shall be in accordance with the principles of competition law’. Pursuant to Article 15(3) of Directive 2002/21, [NRAs] ‘shall, taking the utmost account of the recommendation and the guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles of competition law’ and ‘shall follow the procedures referred to in Articles 6 and 7 before defining the markets that differ from those defined in the recommendation’.
10. Article 16 of the Directive, which is entitled ‘Market analysis procedure’, provides:
‘1. As soon as possible after the adoption of the recommendation or any updating thereof, [NRAs] shall carry out an analysis of the relevant markets, taking the utmost account of the guidelines. Member States shall ensure that this analysis is carried out, where appropriate, in collaboration with the national competition authorities.
…
4. Where a[n] [NRA] determines that a relevant market is not effectively competitive, it shall identify undertakings with significant market power on that market in accordance with Article 14 and the [NRA] shall on such undertakings impose appropriate specific regulatory obligations … or maintain or amend such obligations where they already exist.
5. In the case of transnational markets identified in the Decision referred to in Article 15(4), the [NRAs] concerned shall jointly conduct the market analysis taking the utmost account of the guidelines and decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations … in a concerted fashion.
6. Measures taken according to the provisions of paragraphs … 4 and 5 of this Article shall be subject to the procedures referred to in Articles 6 and 7.’
2. Recommendation 2003/561/EC
11. Commission Recommendation 2003/561/EC of 23 July 2003 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21 (OJ 2003 L 190, p. 13) provides, at Paragraph 6(f), that notification by the NRA of a draft measure should include, where applicable, ‘the results of prior public consultation carried out by the [NRA]’.
12. Paragraph 12 of Recommendation 2003/561 provides:
‘Where the Commission makes comments in accordance with Article 7(3) of Directive 2002/21 …, it will notify the [NRA] concerned by electronic means and publish such comments on its website.’
13. Paragraph 14 of Recommendation 2003/561 provides:
‘Where the Commission in applying Article 7(4) of Directive 2002/21 … considers that a draft measure would create a barrier to the single market or it has serious doubts as to its compatibility with Community law, and in particular the objectives referred to in Article 8 of Directive 2002/21 …; or subsequently
(a) withdraws the objections mentioned above, or
(b) takes a decision requiring a[n] NRA to withdraw the draft measure,
it will notify the [NRA] concerned by electronic means and post a notice on its website.’
14. Paragraph 16 of Recommendation 2003/561 states that an ‘[NRA] may at any time decide to withdraw the notified draft measure, in which case the notified measure will be removed from the [Commission’s] register’.
15. Under Paragraph 17 of Recommendation 2003/561, ‘[w]here a[n] [NRA] that has received comments from the Commission or another [NRA] made in accordance with Article 7(3) of Directive 2002/21 …, adopts the draft measure, on the Commission’s request it shall provide information to the Commission and other [NRAs] of the manner in which it took the utmost account of the comments made’.
Facts giving rise to the dispute
16. Vodafone España and Vodafone Group (hereinafter together referred to as ‘Vodafone’) operate a public mobile communications network in Spain and provide mobile communications services there. There are two other mobile network operators active in the Spanish market, namely Telefonica and Amena. Xfera has been granted a spectrum licence and is authorised to enter the market as a fourth mobile network operator.
17. On 10 August 2004, the Comisión del Mercado de las Telecomunicaciones (Commission for the Telecommunications Market; ‘the CMT’) announced a preliminary consultation on retail services for access and traffic originating from a mobile location, in order to obtain comments from undertakings present in the market.
18. On 7 July 2005, the CMT decided to initiate the procedure for defining and analysing the market for access and call origination on public mobile telephone networks, for designating operators with significant market power and for imposing specific obligations. It also decided to announce the public consultation and to request a report from the Spanish Competition Authority. That decision was published in the Boletín Oficial del Estado
(Official State Gazette) on 9 August 2005. The national consultation took place between 9 August and 9 September 2005.
19. On 16 September 2005 the Spanish Competition Authority sent the CMT its report on the procedure for the definition and analysis of the market for access and call origination on public mobile telephone networks.
20. On 23 September 2005 Vodafone submitted its comments to the CMT.
21. On 6 October 2005 the CMT announced that, due to the complexity of the procedure, the deadline for issuing and notifying a decision was to be extended by three months.
22. On 28 November 2005 the CMT and the Commission held a ‘pre‑notification’ meeting, at which the CMT presented its preliminary findings and the Commission services reacted with some initial questions.
23. Between 13 and 23 December 2005, Vodafone submitted preliminary comments to the Commission.
24. On 30 December 2005 the Commission registered the notification of the CMT’s draft measure under reference ES/2005/0330, by which the CMT proposed, first, to find that Vodafone and two other companies, namely Telefonica and Amena, jointly enjoyed significant market power equivalent to dominance under EC competition law in a wholesale market for the supply of access and call origination on public mobile telecommunications networks in Spain, and, second, to impose an obligation on Vodafone, Telefonica and Amena to respond to reasonable requests for access to their networks and to offer reasonable terms for the supply of access services.
25. The Commission published the CMT’s draft measure on 5 January 2006.
26. On 10 January 2006, the Commission sent a request for information to the CMT, pursuant to Article 5(2) of Directive 2002/21. The reply from the CMT was received on 13 January 2006 and additional information was received from the CMT on 18 January 2006.
27. On 13 January 2006 Vodafone provided the Commission with a copy of the submissions that it had made to the CMT in the course of the national consultation.
28. On 16 January 2006 Vodafone held a meeting with Commission officials in relation to draft measure ES/2005/0330 and provided them with additional information. It also sent comments to the Commission in a fax of 17 January 2006 and an email of 24 January 2006.
29. On 26 January 2006 Vodafone made a request for access to documents held by the Commission in relation to draft measure ES/2005/0330, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
30. By letter of 30 January 2006 the Commission sent the CMT, pursuant to Article 7(3) of Directive 2002/21, a letter of comments on draft measure ES/2005/0330 (‘the letter of 30 January 2006’ or ‘the contested act’).
31. The Commission’s comments related to the finding by the CMT of collective dominance. The first comment concerned the competitive conditions at retail level. Having noted that the CMT’s analysis of the dynamics of the retail market relied on the evolution of Average Revenue per Minute data on an aggregate basis, the Commission invited the CMT in a future market review to monitor the evolution of retail prices by market segment and/or customer profiles. The Commission then noted that the retail market appeared to be characterised by a number of structural features which appeared to provide sufficient incentives to the operators to collectively refuse access to Mobile Virtual Network Operators.
32. In a second comment concerning the focal point, the Commission noted that the CMT defined one focal point, consisting in the denial of wholesale access to third parties, which was transparent. Despite the fact that the CMT had not identified a focal point at retail level (which was not indispensable), the Commission considered that from the alignment of commercial strategies of the three network operators, it was plausible that any deviation towards more aggressive price competition could be easily detected.
33. The third comment concerned the retaliation mechanism. At wholesale level, the Commission noted that the retaliation mechanism could be implemented, but that further evidence could have been provided as to whether it could be more immediate and whether it was sufficiently strong to discipline the deviating firm. At retail level, the Commission considered that overall there were credible retaliation mechanisms.
34. As a fourth comment, the Commission invited the Spanish authorities to find ways of ensuring efficient use of the available spectrum in view of the fact that one licensee (Xfera) had not yet entered the market despite obtaining its licence in 2000. If this licensee were to enter the market in 2006, the CMT would have to closely monitor the effects on the sustainability of the collectively dominant position. The Commission added that any ‘concrete evidence of developments in the retail market not linked to the regulatory measures in the relevant market that would cast doubt on the sustainability of the collectively dominant position will require a review of the relevant market’ and that such a review should be notified to it in accordance with Article 7(3) of Directive 2002/21.
35. The Commission also observed in the letter of 30 January 2006 that the additional information provided by the CMT in response to the request for information had been crucial to the Commission’s assessment of the CMT’s notification. It therefore requested the CMT to base its final measure on the most recent available information.
36. The Commission pointed out, lastly, in the letter of 30 January 2006 that, ‘[p]ursuant to Article 7(5) of Directive [2002/21], CMT [had to] take the utmost account of comments of other NRAs and the Commission’ and that it could ‘adopt the resulting draft measure and, where it [did] so, [should] communicate it to the Commission’.
37. On 31 January 2006, the Commission and the CMT each issued a press release on the letter of 30 January 2006.
38. On 2 February 2006 the CMT adopted a ruling approving the definition and analysis of the market for access and call origination on public mobile telephone networks, the designation of operators with significant market power and the imposition of specific obligations. In paragraph 4 of its ruling, the CMT observed that pursuant to the provisions of Article 7(5) of Directive 2002/21, it ‘will in so far as … possible, take account of the comments made by the Commission and the [NRAs], and may adopt the resultant intended measure, in which case it must notify the Commission’. The final paragraph of CMT’s ruling states that ‘an appeal for review may be filed with [the CMT] within one month from the day following the date of notification, or else an appeal for judicial review may be filed directly before the Judicial Review Division of the [Supreme] Court, within two months counted from the day following the date of notification’.
39. On 7 April 2006 Vodafone lodged an appeal before the Tribunal Supremo (Spanish Supreme Court) against the CMT decision.
40. On 11 May 2006 the Commission sent Vodafone a decision confirming the refusal of access to documents under Regulation No 1049/2001, stating in respect of some of the documents at issue that ‘they form part of the Commission’s internal deliberations on how to pursue the case [concerned] and relate directly to the decision-making process of the Commission’.
Procedure and forms of order sought
41. Vodafone brought this action by an application lodged at the Registry of the Court of First Instance on 12 April 2006.
42. By separate document also lodged at the Court Registry on 12 April 2006, Vodafone, on the basis of Article 76a of the Rules of Procedure of the Court of First Instance, applied for adjudication under the expedited procedure, which was refused by decision of 16 May 2006.
43. By document lodged at the Court Registry on 28 June 2006, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure.
44. By document lodged at the Court Registry on 29 June 2006, the Kingdom of Spain sought leave to intervene in support of the Commission.
45. By order of the President of the Fifth Chamber of the Court of First Instance of 6 September 2006, leave to intervene was granted.
46. In its application, Vodafone claims that the Court should:
– order the annulment of the decision of the Commission comprised in the letter dated 30 January 2006;
– order the Commission to pay Vodafone’s costs in the present proceedings.
47. In its objection of inadmissibility, the Commission claims that the Court should:
– dismiss the application as manifestly inadmissible;
– order Vodafone to pay the costs.
48. In its statement in intervention, the Kingdom of Spain contends that the Court should:
– dismiss the application as inadmissible;
– order Vodafone to pay the costs.
49. In its observations on the objection of inadmissibility, Vodafone claims that the Court should:
– dismiss the Commission’s objection of inadmissibility;
– order that the proceedings be continued in relation to the substance;
– order the Commission to pay the costs occasioned by its objection of inadmissibility.
Law
50. Under Article 114(1) of the Rules of Procedure, if a party so requests, the Court may rule on the objection of inadmissibility without going to the substance of the case. Under Article 114(3), unless the Court otherwise decides the remainder of the proceedings are to be oral. The Court finds that in the present case it has sufficient information from the case-file and there is no need to open the oral procedure.
51. It is appropriate to examine, first, whether the contested act in this case, namely a letter adopted on the basis of Article 7(3) of Directive 2002/21, constitutes an act which is amenable to review under Article 230 EC and, next, whether Vodafone has standing to bring proceedings under the fourth paragraph of Article 230 EC.
1. The nature of the contested act
Arguments of the parties
52. The Commission and the Kingdom of Spain submit that the contested act is not one which is amenable to review under Article 230 EC.
53. Vodafone submits that, in order to ascertain whether an act produces legal effects which are binding on, and capable of affecting the interests of the applicant by bringing about a distinct change in its legal position, it is necessary to look to the substance of the act, since the form in which acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge by an action for annulment (Case 60/81 IBM v Commission
[1981] ECR 2639, paragraph 9; Case T‑33/01 Infront WM v Commission
[2005] ECR II‑5897, paragraph 89).
54. Vodafone submits, first, that it is apparent from the content and the context in which it was adopted that the contested act constitutes an authorisation decision, by which the Commission endorsed the CMT’s draft measure and decided not to initiate the second phase of the procedure under Article 7(4) of Directive 2002/21. It explains to that effect that Article 7(3) and (4) of the Directive leaves the Commission with only two options once it has examined a draft measure which has been notified to it: either it requires the NRA concerned not to adopt the draft measure for another two months or it does not impose a moratorium, thereby allowing the NRA to adopt its draft measure. In cases where the Commission decides not to impose a moratorium, it may none the less decide to address comments to the NRA, and such comments might touch on a multitude of different points, of varying degrees of significance. However, the possibility of a multitude of different kinds of comments does not detract from the essentially binary choice available to the Commission: to direct the NRA not to adopt the draft measure for another two months, or to make no such direction, thereby allowing it immediately to proceed to adopt its draft measure.
55. Vodafone points out that the Commission’s role is to secure the uniform application of Directive 2002/21. That objective can be achieved only if the Commission is bound to review each notification and to make a decision in each case. In any event, the Commission itself recognises that it takes a position in every case. Within one month of notification, the Commission either approves the draft measure or decides to initiate the second phase of the procedure.
56. In the present case, the Commission assessed draft measure ES/2005/0330 to decide whether there were serious doubts as to its compatibility with Community law, and, having decided that there were not, it endorsed the draft measure. The Commission described its role in these terms not only in the contested act, but also in its accompanying press release of 31 January 2006 (IP/06/97) and in its request to the CMT for further information following notification. Vodafone draws attention to the fact that, in numerous other statements describing the procedure of Article 7 of Directive 2002/21, including on its website, the Commission lists all letters under Article 7(3) of that directive as ‘decisions’. Vodafone also refers to the Commission’s decision of 11 May 2006 refusing access to documents relating to draft measure ES/2005/0330, which makes numerous references to the Commission ‘decision’ and ‘decision-making process’. It further states that it is apparent from the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 6 February 2006 on Market Reviews under the EU Regulatory Framework – Consolidating the internal market for electronic communications (COM (2006) 28 final, pp. 5 and 10) that the Commission, which takes a position in relation to each notified measure, verifies whether the NRA’s assessment is in line with Community competition law and is sufficiently supported by evidence. The binding nature of the procedure under Article 7 of Directive 2002/21 and the Commission’s central role in assessing and verifying the conclusions of the notifying NRA are also evident from Recommendation 2003/561 and from Commission Memorandum 06/59 of 7 February 2006, entitled ‘Electronic Communications: the Article 7 procedure and the role of the Commission – Frequently Asked Questions’.
57. Vodafone, referring to Infront WM v Commission, paragraph 53 above, states that the Commission’s own description of its role and procedure is persuasive evidence in determining whether an act produces binding legal effects and may be challenged under Article 230 EC ( Infront WM v Commission, paragraph 53 above, paragraphs 106 and 107). Furthermore, like the decision adopted in the case which gave rise to Infront WM v Commission, it is necessary to attribute binding effects to the contested act in the present case in order to safeguard the accurate and uniform application of Community law pursued by Directive 2002/21. It is only if the Commission is obliged to assess each draft measure notified to it and decide whether the measure in question needs to be ‘filtered out’ as being incompatible with Directive 2002/21 or with Community law that the Article 7 procedure can contribute effectively to the accurate and uniform application of Directive 2002/21.
58. As regards the argument alleging that there is no ‘operative part’ in the letter of 30 January 2006, Vodafone states that it is the substance not the form of an act which determines whether the act produces legal effects ( Infront WM v Commission, paragraph 53 above, paragraph 110). It points out in this respect that the Court has already held acts without formal operative parts to be reviewable acts (Case T‑3/93 Air France v Commission
[1994] ECR II‑121, paragraph 44 et seq.).
59. In any event, Vodafone submits that the part of the contested act in which the Commission reproduces the wording of Article 7(5) of Directive 2002/21 constitutes an operative part by which, in stating that the CMT may adopt the resulting draft measure and in deciding thus not to initiate the second phase of the procedure, the Commission lifted the only remaining bar on the adoption by CMT of draft measure ES/2005/0330. By reproducing the wording of Article 7(5) of Directive 2002/21 in the operative part of the contested act but omitting the phrase ‘except in cases covered by paragraph 4’, which is an integral part of that provision, the Commission clearly decided that the CMT’s draft measure did not fall within Article 7(4) of Directive 2002/21 as it had no serious doubts as to the compatibility of the measure with Community law and had decided not to initiate the second phase of the procedure.
60. In its comments on the statement in intervention of the Kingdom of Spain, Vodafone states that the applicable regulatory framework grants the Commission a decisive role in ensuring the uniform application of Community law. Article 7 of Directive 2002/21 achieves that objective by providing that the Commission is to receive every draft measure, assess it and decide on it under an elaborate legally binding system. The legally binding nature of a letter under Article 7(3) of Directive 2002/21 is further apparent from a press release of 20 October 2006 (IP/06/1439) and from a speech delivered by the Information Society Commissioner, on 16 November 2006. The wording used by the Commission in those documents accords entirely with Vodafone’s description of the Commission’s duty to examine each notification and then to decide, where appropriate, to proceed to an in-depth investigation and ultimately to veto those measures that are not consistent with Community law. The procedure of Article 7 of Directive 2002/21 does not constitute a mechanism for exchanging experiences or a dialogue between competent authorities, but a legally binding authorisation procedure. Vodafone recalls to that effect the wording of Article 7(5) of Directive 2002/21, according to which NRAs are to take the utmost account of the Commission’s comments, and Paragraph 17 of Recommendation 2003/561, pursuant to which an NRA must provide information to the Commission of the manner in which it took the utmost account of the Commission’s comments under Article 7(3) of Directive 2002/21.
61. Second, Vodafone submits that by lifting the final obstacle to the adoption of draft measure ES/2005/0330 and by putting an end to the review of the draft measure at Community level, the contested act not only altered the CMT’s legal position, by enabling it to lawfully adopt its draft measure and by placing upon it a legal obligation to take the utmost account of the f actors raised in the Commission’s comments, but also Vodafone’s own position, since it deprived Vodafone of the procedural rights which it would have enjoyed if the Commission had initiated the second phase of the procedure.
62. Vodafone submits in this respect that the contested act is analogous either to an act which the Commission adopts on the basis of Article 6(1)(a) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), where the Commission takes the view that it does not have competence to assess a concentration, or to an act adopted on the basis of Article 9 of that regulation, where it refers the case to the national authorities. By putting an end to the review under Community law, both those acts, adopted on the basis of Regulation No 139/2004, affect the legal situation of the third party applicant by depriving it, first, of the opportunity to have the Commission review the lawfulness of the concentration from the point of view of that regulation and, second, of the procedural rights which it would otherwise have enjoyed during the administrative procedure before the Commission (Case T‑87/96 Assicurazioni Generali and Unicredito v Commission
[1999] ECR II‑203, paragraphs 37 to 44, and Case T‑119/02 Royal Philips Electronics v Commission
[2003] ECR II‑1433, paragraph 282). That situation is comparable to the present case, since the letter of 30 January 2006 put an end to the Community review of the proposed measure by bringing to an end the procedure under Article 7 of Directive 2002/21 and by enabling the national procedure for the adoption of the proposed measure to continue.
63. Vodafone adds that it is the substantive effect of an act, assessed in the context of the legislative regime of which it forms part, and not the fact that the Commission has sole competence, which is crucial in determining whether an act is amenable to review under Article 230 EC. In any event, the Commission has sole competence under Directive 2002/21 to decide whether to impose a moratorium on the adoption of a measure notified by an NRA, by initiating the second phase of the procedure. The exercise of such competence is amenable to review by the Community Courts. It is irrelevant whether the Commission has sole competence in respect of the whole process, which may lead to the adoption of ex ante regulatory measures, or whether the NRAs also enjoy competence in respect of certain parts of the process.
64. Vodafone also relies on case-law concerning State aid, according to which a decision adopted by the Commission pursuant to Article 88(3) EC not to initiate the second phase of the procedure and to approve the grant of new aid notified by a Member State is such that it produces direct effects not only for the Member State, but also for the proposed recipient of the aid and for third party complainants. Those third party complainants are deprived of the procedural rights which they would have enjoyed in participating in a full Commission investigation of the aid proposals (Case C‑198/91 Cook v Commission
[1993] ECR I‑2487, paragraphs 23 to 26, Case C‑225/91 Matra v Commission
[1993] ECR I‑3203, paragraphs 17 to 20; Case T‑395/04 Air One v Commission
[2006] ECR II‑1343, paragraphs 30 to 31).
65. Vodafone further states that its procedural rights derive directly from general principles of Community law. It is not necessary for a secondary instrument of Community law expressly to confer procedural rights in order for such rights to arise (Joined Cases C‑48/90 and C‑66/90 Netherlands and Others v Commission
[1992] ECR I‑565, paragraphs 44 to 51). Thus, in the area of State aid, the Court defined the category of beneficiaries of the procedural rights conferred by Article 88(2) EC and the content of those rights before they were expressly set out in Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) (Case 323/82 Intermills v Commission
[1984] ECR 3809, paragraphs 16 and 17). In this respect, it is established case‑law that in two-phase proceedings in the area of State aid, parties, like Vodafone, are entitled to challenge a Commission decision closing the first phase of the procedure in order to secure the procedural rights which they would enjoy during the second phase of the procedure ( Cook v Commission, paragraph 64 above, paragraph 23; Matra v Commission, paragraph 64 above, paragraph 17, Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum
[2005] ECR I‑10737, paragraph 35; Air One v Commission, paragraph 64 above, paragraph 31; Royal Philips Electronics v Commission, paragraph 62 above, paragraph 284).
66. The protection of Vodafone’s procedural rights at national level does not therefore mean that it cannot rely on procedural rights at Community level. The procedure before the CMT and that at Community level under Article 7 of Directive 2002/21 are two separate procedures. Vodafone’s rights under Community law may well apply to additional information which cannot be challenged under the national appeal as it did not form part of the procedure before the CMT. In this respect, Vodafone explains that it never had the opportunity to comment on the additional information provided by the CMT to the Commission in the letter from the President of the CMT of 24 January 2006 and in that of 25 January 2006 in response to the Commission’s request for information. The Commission itself acknowledges the necessity of also granting procedural rights at Community level despite the existence of procedural rights at national level.
67. The fact that Article 4 of Directive 2002/21 provides for national rights of appeal is irrelevant for the assessment of the admissibility of this action. The decisive role of the Commission in the correct and uniform application of Directive 2002/21, which consists of assessing each and every measure notified to it and deciding on its compatibility with Community law, should be subject to judicial review by the Community Courts irrespective of national rights of appeal against the national measure. To that effect, Vodafone states that it is entitled to appeal against the Commission’s decision not to open the second phase of the procedure, on the ground that the only course open to the Commission – faced with the evidence contained in the CMT’s notification – was to initiate the second phase of the procedure. It is an entirely separate matter whether Vodafone also has grounds to appeal against the CMT’s adopted measure at national level, on the basis, for example, that the CMT made factual errors of assessment which are not apparent on the face of its notification to the Commission, and which the Commission could not have been expected to identify. Vodafone further observes that, in this case, there are substantive issues at stake which cannot be addressed in a national appeal. It states in this respect that the inconsistency of the letter of 30 January 2006 with decisions adopted by the Commission in relation to other Member States forms the basis for two particular pleas in this action. Since the national and Community appeal mechanisms have different objectives there is no risk in the present case of ‘forum shopping’. In any event, the possible existence of remedies before the national courts cannot preclude the possibility of contesting the legality of a decision adopted by a Community institution directly before the Community judicature under Article 230 EC ( Air France v Commission, paragraph 58 above, paragraph 69; Royal Philips Electronics v Commission, paragraph 62 above, paragraph 290, and Infront WM v Commission, paragraph 53 above, paragraph 109).
68. Lastly, the fact that the Commission does not have investigative powers as extensive as those which it has under Regulation No 139/2004 cannot be a relevant factor in determining the admissibility of this action. Vodafone points out in this respect that the Commission has the power under Article 5 of Directive 2002/21 to require NRAs to provide it ‘with the information necessary for it to carry out its tasks under the Treaty’ (including information considered confidential) and that the Commission exercised its power in this case. The Commission’s investigative powers are limited only in so far as the Commission is not required or entitled to carry out a full substantive review of all of the facts underlying the NRA’s draft measure. The Commission’s role is different from that of either the NRA or the national appeal body established under Article 4 of Directive 2002/21. However, within the constraints of the information available to it (including information it requests under Article 5 of Directive 2002/21), the Commission has a duty to consider whether a draft measure would create a barrier to the internal market, to decide whether it has serious doubts concerning the compatibility of the draft measure with Community law and, in cases where, at the end of an extended investigation, it considers that a proposed measure is incompatible with Community law, to veto the draft measure. To fulfil this task, the Commission must exercise a legally appropriate degree of oversight which respects an NRA’s margin of discretion but prevents the adoption of draft measures incompatible with Community law.
Findings of the Court
69. According to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC. The form in which such acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge by an action for annulment ( IBM v Commission, paragraph 53 above, paragraph 9; Case T-241/97 Stork Amsterdam v Commission
[2000] ECR II‑309, paragraph 49). In order to ascertain whether or not an act which has been challenged produces such effects it is necessary to look to its substance (Case C-147/96 Netherlands v Commission
[2000] ECR I­‑4723, paragraph 27).
70. In order to determine, in the light of the abovementioned principles, the legal nature of the contested act and whether it produces binding legal effects, it is necessary to examine both its content and the context in which it was adopted (see, to that effect, the order in Case C‑50/90 Sunzest v Commission
[1991] ECR I‑2917, paragraph 13).
The context in which the contested act was adopted
– The tasks assigned to NRAs and to the Commission by Directive 2002/21
71. The legal context in which the contested act was adopted is that of Directive 2002/21. In accordance with Article 1(1) thereof, the Directive ‘establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services [,] … lays down tasks of [NRAs] and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community’.
72. The Community legislature wished to assign a central role to NRAs in order to achieve the objectives referred to in Directive 2002/21, amongst which, as Article 8(2) thereof states, is the promotion of competition on the electronic communications markets.
73. In this respect, it is first necessary to note procedural factors such as recourse to the legal instrument of a directive, of which Member States are the sole addressees. The structure of the directive, which contains five chapters, entitled ‘Scope, aim and definitions’ (Chapter 1: Articles 1 and 2), ‘[NRAs]’ (Chapter 2: Articles 3 to 7), ‘Tasks of [NRAs]’ (Chapter 3: Articles 8 to 13), ‘General provisions’ (Chapter 4: Articles 14 to 25) and ‘Final provisions’ (Chapter 5: Articles 26 to 30), respectively, also reflects the central role of NRAs.
74. Next, as regards the precise areas of responsibility assigned by Directive 2002/21 to the NRAs, they are required, inter alia, to define, on the basis of the principles of competition law, electronic communications markets within their territory (Article 15(3) of Directive 2002/21), to identify operators having significant market power on those markets (Article 14 of Directive 2002/21) and to determine the regulatory obligations which must, where appropriate, be imposed on those operators (Article 16(4) of Directive 2002/21).
75. When exercising the responsibilities referred to in the previous paragraph, the NRAs receive assistance from the Commission. Thus, Article 15(1) of Directive 2002/21 provides that ‘the Commission shall adopt a recommendation on relevant product and service markets’ and that ‘[t]he recommendation shall identify … those product and service markets within the electronic communications sector, the characteristics of which may be such as to justify the imposition of regulatory obligations’. Article 15(2) of Directive 2002/21 adds that the ‘Commission shall publish … guidelines for market analysis and the assessment of significant market power … which shall be in accordance with the principles of competition law’.
76. In accordance with the second subparagraph of Article 14(2), Article 15(3) and Article 16(1) of Directive 2002/21, the NRAs ‘[are to] take into the utmost account’ the Commission recommendation and guidelines.
77. Directive 2002/21 provides for more direct involvement by the Commission and involvement by other NRAs where an NRA intends ‘[to define] the markets that differ from those defined in the [Commission’s] recommendation’ (Article 15(3)). The same applies where the NRA – or NRAs concerned in the case of a transnational market – seek to impose, maintain or amend appropriate specific regulatory obligations on undertakings with significant power on a market which is not effectively competitive (Article 16(4), (5) and (6)). The Commission’s involvement and that of other NRAs in the process of consolidating the internal market for electronic communications is set out in Article 7 of Directive 2002/21 and is intended, in accordance with recital 15 in the preamble thereto, ‘to ensure that decisions at national level do not have an adverse effect on the single market or other Treaty objectives’. It is a process which seeks to ensure the consistent application of the regulatory framework.
– The conduct of the procedure under Article 7 of Directive 2002/21
78. Article 7(3) of Directive 2002/21 provides that ‘where a[n] [NRA] intends to take a measure’ referred to inter alia in Articles 15 or 16 of Directive 2002/21 and ‘[which] would affect trade between Member States’, the NRA concerned must ‘[i]n addition to the consultation [of interested parties] referred to in Article 6’ make ‘the draft measure accessible to the Commission and the [NRAs] in other Member States, together with the reasoning on which the measure is based’ and ‘inform the Commission and other [NRAs] thereof’. That obligation on the NRA concerned to notify corresponds with the Commission’s obligation to examine the notified draft measure in order to ‘ensure that decisions at national level do not have an adverse effect on the single market or other Treaty objectives’ (recital 15 in the preamble to Directive 2002/21).
79. In the present case, draft measure ES/2005/0330, which was notified to the Commission and to the other NRAs, falls within Article 16(4) of Directive 2002/21. The proposed measure aims to designate undertakings as having significant market power and to impose specific regulatory obligations.
80. It should be observed that Article 7 of Directive 2002/21 provides for two types of possible reaction on the part of the Commission, following notification of a draft measure falling within Article 16(4) of Directive 2002/21.
81. In the first case, provided for in Article 7(3) of Directive 2002/21, the Commission considers that the draft measure will not create a barrier to the single market or does not have serious doubts as to its compatibility with Community law and in particular the objectives referred to in Article 8 of the Directive. In that case, the Commission ‘may make comments to the [NRA] concerned only within one month’ if, as in this case, the consultation of interested parties provided for in Article 6 of Directive 2002/21 was already completed when the draft measure was notified. The Commission stated in the course of these proceedings that, for reasons of transparency, it took a position on each notification by making comments or by sending a letter stating that it had no comments to make (Communication COM (2006) 28 final, p. 3).
82. In the second case, referred to in Article 7(4) of Directive 2002/21, the Commission considers, conversely, that the draft measure ‘would affect trade between Member States’ and ‘would create a barrier to the single market’ or expresses ‘serious doubts as to its compatibility with Community law and in particular the objectives referred to in Article 8’. In that case, it sends a letter, also within one month, to the NRA concerned expressing serious doubts within the meaning of Article 7(4) of Directive 2002/21 and, in accordance with that provision, ‘the draft measure shall not be adopted for a further two months’. During that second phase of the procedure, the Commission undertakes a detailed examination of the measure concerned. Even though no provision expressly so provides, the Commission stated that, in the context of the second phase, it invited interested parties to submit their observations.
83. In is apparent from Article 7(4) of Directive 2002/21 that, within that additional period of two months, ‘the Commission may … take a decision requiring the [NRA] concerned to withdraw the draft measure’. Such a decision ‘shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not be adopted together with specific proposals for amending the draft measure’. The Commission may also reach the conclusion that that measure does not, ultimately, raise problems of compatibility with Community law. In that case, it withdraws the objections, in accordance with Paragraph 14 of Recommendation 2003/561. The initiation of the second phase of the procedure does not therefore necessarily result in a veto decision by the Commission.
84. It should be pointed out that the role of other NRAs following notification of the draft measure is, unlike that of the Commission, limited to making comments under Article 7(3) of Directive 2002/21. Other NRAs do not have the power to request the notifying NRA to withdraw its draft measure.
– The legal nature of a letter under Article 7(3) of Directive 2002/21
85. The contested act in this case is a Commission’s letter of comments on the basis of Article 7(3) of Directive 2002/21.
86. Vodafone submits that the contested act produces legal effects that are binding on it and capable of affecting its interests within the meaning of the case‑law cited at paragraph 69 above.
87. In the first place, it states that, by adopting the contested act, the Commission approved draft measure ES/2005/0330 and decided not to impose the additional moratorium of two months provided for in Article 7(4) of Directive 2002/21 and not to open the second phase of the procedure provided for in that provision, thereby depriving it of its procedural rights.
88. In this respect, it should be noted that Article 8(2) of Directive 2002/21 requires NRAs, inter alia, to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services. Draft measure ES/2005/0330, which falls under Article 16(4) of Directive 2002/21, seeks to achieve that objective by imposing specific regulatory obligations on the three public mobile communications network operators active in Spain, which, according to the CMT, jointly have significant market power.
89. Under the procedure leading to the adoption of a final measure by the NRA under Article 16(4) of Directive 2002/21, the NRA concerned notifies, in accordance with Article 7(3) of Directive 2002/21, its draft measure to the Commission and other NRAs ‘to give them the opportunity to comment’ (recital 15 in the preamble to Directive 2002/21). The procedure under Article 7(3) of Directive 2002/21 therefore constitutes a consultation and cooperation procedure between the notifying NRA, on the one hand, and other NRAs and the Commission on the other.
90. It is true, as Article 1(1) of Directive 2002/21 states, that the intervention of the Commission and of other NRAs under the procedure of Article 7 of Directive 2002/21 is ‘to ensure the harmonised application of the regulatory framework throughout the Community’.
91. However, that does not mean that the Commission’s comments under Article 7(3) of Directive 2002/21 produce binding legal effects.
92. First, on the one hand, whilst it is true that Directive 2002/21 assigns an important role to the Commission in the context of the procedures to ensure the harmonised application of the regulatory framework throughout the Community, the fact remains that, in accordance with Article 7(2) and Article 8(3)(d) of Directive 2002/21, NRAs are to ensure the consistent application of the regulatory framework by cooperating with each other and with the Commission in a transparent manner. NRAs therefore also have a key responsibility for ensuring the consistent application of the regulatory framework in the Community on the basis of cooperation between the Commission and other NRAs.
93. On the other hand, it must be noted that the legal effects of a letter under Article 7(3) of Directive 2002/21 are clearly set out at Article 7(5), according to which the notifying NRA ‘shall take the utmost account of comments of other [NRAs] and the Commission’. That wording underlines the non-binding nature of a Commission letter under Article 7(3) of Directive 2002/21. Article 7(5) of Directive 2002/21 does not therefore provide that the Commission’s comments are to prevail over those of other NRAs. In this respect, Paragraph 17 of Recommendation 2003/561 states that ‘[w]here a[n] [NRA] that has received comments from the Commission or another [NRA] made in accordance with Article 7(3) of Directive 2002/21 …, adopts the draft measure, on the Commission’s request it shall provide information to the Commission and other [NRAs] of the manner in which it took the utmost account of the comments made’. Accordingly, in a case where the comments of an NRA and of the Commission are contradictory, the notifying NRA would not infringe Article 7(5) of Directive 2002/21 by following, after careful review of the various comments, the approach proposed by the other NRA and not that proposed by the Commission.
94. Moreover, if, as Vodafone claims, the Commission had the power to authorise the national measure notified under Article 7(3) of Directive 2002/21, it would not be sufficient, in such a case, for the NRA to take the utmost account of the Commission’s ‘decision’ since, under Article 249 EC, such a decision would be binding in its entirety upon the addressee thereof.
95. Second, the fact that the Commission may, in the circumstances referred to in Article 7(4) of Directive 2002/21, initiate the second phase of the procedure, which may lead to a veto decision, does not however mean that it is the Commission’s letter of comments pursuant to Article 7(3) of that directive that entitles the NRA concerned to adopt the proposed national measure.
96. It must be recalled in that connection that draft measure ES/2005/0330, which the CMT notified in this case to the Commission and to the other NRAs, constitutes a measure referred to in Article 16(4) of Directive 2002/21. That provision directly authorises the NRA concerned to adopt the measure in question in so far as it provides that where an NRA determines that a market is not effectively competitive it ‘shall identify undertakings with significant market power on that market’ and ‘shall on such undertakings impose appropriate specific regulatory obligations’. Even if, in the circumstances specified in Article 7(4) of Directive 2002/21, the Commission may require the NRA concerned to withdraw a notified draft measure where the measure would create a barrier to the single market or would be incompatible with Community law and in particular the policy objectives that NRAs should follow, the exercise by the NRA of the powers which it derives directly from Article 16(4) of Directive 2002/21 requires no ‘authorisation’ on the part of the Commission. Furthermore, no provision of Directive 2002/21 states that the fact that the Commission does not initiate the second phase of the procedure is to be regarded as equivalent to an approval of the notified draft measure authorising the NRA to act.
97. Third, having regard to the advisory role assigned to the Commission and to the other NRAs under the procedure of Article 7(3) of Directive 2002/21, a Commission letter of comments under that provision constitutes a preparatory Community act in the context of a procedure which leads to the adoption of a national measure by the NRA concerned. However, it is apparent from settled case-law that preparatory acts adopted by the Community institutions cannot be the subject of an independent action for annulment ( Netherlands v Commission, paragraph 69 above, paragraph 35; Case T‑311/04 Buendía Sierra v Commission
[2006] ECR II‑4137, paragraph 98).
98. Indeed, Commission intervention under Article 7(3) of Directive 2002/21 does not lead to the adoption of a definitive Community act which may be the subject of a direct action before the Community judicature.
99. However, contrary to what Vodafone claims, the right to effective judicial protection does not require an action to lie before the Court of First Instance against a letter of comments pursuant to Article 7(3) of Directive 2002/21.
100. To that effect, it must be pointed out that Article 4 of Directive 2002/21 requires Member States to set up an appeal mechanism against decisions of their NRAs before an independent body. It is stated that where that appeal body is not judicial in character, ‘its decision shall be subject to review by a court or tribunal within the meaning of Article 234 of the Treaty’.
101. Directive 2002/21 thus organises a full system of judicial protection.
102. On the one hand, where, as in the present case, the Commission’s role is limited to consultation in the context of the procedure under Article 7(3) of Directive 2002/21 which leads, in principle, to the adoption of a decision by the NRA concerned, a right of appeal lies to the national court or tribunal concerned, which, in accordance with Article 234 EC, may refer questions to the Court of Justice for a preliminary ruling on the interpretation of the applicable Community regulatory framework. It should be noted that Vodafone has lodged an appeal before the Tribunal Supremo against the CMT’s decision. Since a reference for a preliminary ruling under Article 234 EC may also relate to non-binding Community acts (see, to that effect, Case C‑322/88 Grimaldi
[1989] ECR 4407, paragraph 8, and Case C‑94/91 Wagner
[1992] ECR I‑2765, paragraphs 16 and 17), the national court or tribunal concerned could, by means of such a reference, ascertain inter alia whether the Commission’s letter of comments pursuant to Article 7(3) of Directive 2002/21 is based on a correct interpretation of Community law.
103. On the other hand, if the Commission exercises its right of veto under Article 7(4), the procedure does not lead to a national decision, but to the adoption of a Community act having binding legal effects and an action can be brought before the Court of First Instance.
104. In the second place, Vodafone seeks to establish the binding nature of a Commission letter pursuant to Article 7(3) of Directive 2002/21 by emphasising the right of veto available to the Commission under Article 7(4) of that directive, which purportedly demonstrates that it has a decision-making role under Article 7.
105. In that regard, it must be pointed out that Article 7(4) of Directive 2002/21 enables the Commission to ‘take a decision requiring the [NRA] concerned to withdraw the draft measure’. Even if the actual exercise of the right of veto gives rise to binding legal effects in that the NRA in question would no longer be entitled to adopt the proposed measure, it must be considered that non-exercise of the right of veto can be treated as non-adoption of a decision which does not give rise to any binding legal effect (see, to that effect, Case C‑27/04 Commission v Council
[2004] ECR I‑6649, paragraphs 31 to 34).
106. It follows that if, as it did in the present case, the Commission merely makes comments in accordance with Article 7(3) of Directive 2002/21 and does not exercise its right of veto provided for in Article 7(4), the Commission’s intervention does not have any binding legal effects. If the NRA decides to adopt the national measure, the binding legal effects deriving from that measure are attributable to the NRA in question and not to the Commission’s comments or the fact that the procedure under Article 7(4) of Directive 2002/21 is not set in motion.
107. On that point, the procedures under Article 7(3) and (4) of Directive 2002/21 are distinguishable from State aid and merger review procedures, in respect of which the applicable legal framework provides expressly that non-exercise by the Commission of its powers within a certain period amounts to an implied authorisation decision. If, within 25 working days or two months following notification of the concentration or the State aid measure respectively, the Commission has not taken a decision, the concentration or the State aid measure is deemed to be compatible with the common market, pursuant to Article 10(6) of Regulation No 139/2004 and Article 4(6) of Regulation No 659/1999. However, no provision of Directive 2002/21 provides that non-exercise by the Commission of its powers under Article 7(4) of Directive 2002/21 amounts to an implied decision to authorise the national measure. In the absence of any provision of Community law prescribing a period on the expiry of which an implied decision is deemed to arise and establishing the content of that decision, non-adoption of a decision by a Community institution cannot be regarded as an act open to challenge under Article 230 EC (see, to that effect, Commission v Council, paragraph 105 above, paragraphs 32 and 34).
108. In the third place, Vodafone relies several times on Infront WM v Commission, paragraph 53 above, in support of its argument that the letter of 30 January 2006 constitutes an act open to challenge under Article 230 EC.
109. The fact that the action was declared admissible by the Court of First Instance in Infront WM v Commission, paragraph 53 above, does not mean that it should be concluded that this action is admissible.
110. It must first be recalled that in Infront WM v Commission, paragraph 53 above, the contested act was a Commission letter based on Article 3a of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60). Directive 89/552 sought to facilitate the free movement of television broadcasts within the Community whilst taking account of the specific nature, particularly cultural and sociological, of audiovisual programmes. In particular, it enabled the Member States to take measures to protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society. In that context, it was provided that Member States retained the right to take measures compatible with Community law to regulate the exercise by television broadcasters under their jurisdiction of the exclusive broadcasting rights to such events. For the purposes of their mutual recognition by the other Member States under Article 3a(3) of Directive 89/552, the measures adopted or to be adopted by a Member State had to be notified to the Commission. Article 3a(2) of the Directive provided, in that regard, that within a period of three months from the notification, the Commission was to verify that such measures taken by States were compatible with Community law. The measures thus approved by the Commission were published in the Official Journal.
111. The contested act which gave rise to the judgment in Infront WM v Commission, paragraph 53 above, was a Commission letter in which it had found that measures in the United Kingdom which had been notified to it on the basis of Article 3a of Directive 89/552 were compatible. According to the Court of First Instance, that ‘letter … produce[d] legal effects for the Member States in so far as it envisage[d] the publication in the Official Journal of the national measures in question, since the effect of that publication [was] to trigger the mechanism for mutual recognition laid down by Article 3a(3) of … [D]irective [89/552]’ (paragraph 95). The Court notes to that effect that, in accordance with Article 3a(2) and (3) of Directive 89/552, ‘the mutual recognition of the national measures notified [was] subject to the verification of their compatibility with Community law’ (paragraph 101).
112. By contrast, under the procedure provided for in Article 7 of Directive 2002/21, the notifying NRA is not seeking to obtain a legal effect in the other Member States by its notification. That notification is effected in the framework of the consultation and cooperation procedure between NRAs and the Commission, with the aim of ensuring the consistent application of the regulatory framework. The comments made by the Commission in a letter under Article 7(3) of Directive 2002/21, such as the contested act in this case, do not produce any binding legal effect either vis-à-vis the notifying NRA or vis-à-vis other NRAs. They are merely comments of which, as in the case of comments received from other NRAs, the notifying NRA is requested to take the utmost account.
113. In the fourth place, Vodafone’s argument that the letter of 30 January 2006 constitutes an implied decision not to initiate the second phase of the procedure provided for in Article 7(4) of Directive 2002/21 which should accordingly be open to challenge in order to safeguard the procedural rights which it would have enjoyed during that second phase must also be rejected.
114. Although, exceptionally, the Court of Justice has found it necessary to categorise a decision to initiate a procedure as an act open to challenge (see, as regards the decision to initiate the Article 88(2) EC procedure, Case C‑400/99 Italy v Commission
[2001] ECR I‑7303), this Court notes that the Community judicature has never so far categorised a decision not to initiate a procedure as an act open to challenge.
115. Even assuming that the safeguarding of an interested party’s procedural rights may be such as to influence whether a decision not to initiate a specific procedure is open to challenge, it is still necessary to examine whether, under Directive 2002/21, Vodafone enjoys procedural rights which this Court should safeguard.
116. In this respect, it must be recalled, first, that Article 6 of Directive 2002/21 provides that, where NRAs intend to take measures in accordance with that directive which have a significant impact on the relevant market, they must give ‘interested parties the opportunity to comment on the draft measure within a reasonable period’.
117. Next, Article 4(1) of Directive 2002/21 establishes an effective right of appeal before national courts or tribunals against decisions of NRAs.
118. The procedural rights that Article 6 of Directive 2002/21 grants to interested parties under the procedure before the NRA must therefore be safeguarded before national courts or tribunals.
119. Article 7(3) of Directive 2002/21 does not grant additional procedural rights to interested parties where that procedure does not lead to the adoption of a Community measure having binding legal effects. The procedure under Article 7(3) of Directive 2002/21 thus relates exclusively to the relations between the NRA concerned, on the one hand, and other NRAs and the Commission on the other, which may submit comments to the NRA concerned. However, under that procedure, in order to enable the Commission usefully to take a position, it is informed of interested parties’ comments which were submitted during the national procedure. In accordance with Paragraph 6(f) of Recommendation 2003/561, the notifying NRA submits to the Commission ‘the results of prior public consultation carried out by the [NRA]’.
120. The Community legislature’s approach, which seeks to ensure that the procedural rights of interested parties are observed at national level, can be explained by the fact that, under the legal framework established by Directive 2002/21, measures affecting the interests of undertakings active in electronic communication markets, in particular those referred to in Article 16 of the Directive, are adopted by NRAs and not by the Commission.
121. As regards the procedure applicable where the Commission expresses serious doubts as to the compatibility of a notified measure with Community law, it must first be noted that Article 7(4) of Directive 2002/21 is silent as regards possible involvement by interested parties in that procedure. Even though the Commission states that the initiation of the second phase of the procedure, under Article 7(4) of Directive 2002/21, is published on the Commission internet site, with a request to interested parties to submit their comments within five working days, the fact that such a procedure is not initiated does not affect the procedural rights of an interested party. Non-initiation of the procedure under Article 7(4) of Directive 2002/21 implies that the final decision in the case will be taken at national level. The procedural rights which interested parties enjoy where the Commission merely makes comments under Article 7(3) of Directive 2002/21 are safeguarded before national courts or tribunals. Thus, if Vodafone takes the view, as it does in its third plea, that it was unable to submit comments on essential information, namely that information which was submitted for the first time in the procedure before the Commission, it could put forward such a plea before the national court or tribunal.
122. It is not therefore possible to plead infringement of procedural rights at the Community level where, as in the present case, the Commission merely makes non‑binding comments under Article 7(3) of Directive 2002/21.
123. The case‑law on control of concentrations and State aid to which Vodafone refers is not relevant to this case.
124. First, in the case-law relied on by Vodafone, the action did not seek the annulment of a decision not to initiate the second phase of the procedure. The action sought the annulment of an act producing binding legal effects which, according to each of the applicants concerned, was adopted in disregard of its procedural rights.
125. Thus, as regards review of State aid, the issue of compliance with procedural rights was relied on in an action against a decision not to raise objections falling under Article 4(3) of Regulation No 659/1999 ( Cook v Commission
and Matra v Commission, paragraph 64 above; Air One v Commission, paragraph 64 above, paragraphs 30 to 31). Such a decision produces binding legal effects where it expressly declares the aid at issue compatible with the common market.
126. As regards control of concentrations, the issue of compliance with procedural rights has been raised in an action against a Commission decision based on Article 6(1)(a) of Council Regulation (EEC) No 4064/89 of 21 December 1989 (OJ 1989 L 395, p. 1) (now Article 6(1)(a) of Regulation No 139/2004), finding that the notified operation did not constitute a concentration ( Assicurazioni Generali and Unicredito v Commission, paragraph 62 above) or against a decision based on Article 9(1) of Regulation No 4064/89 (now Article 9(1) of Regulation No 139/2004) referring the review of the concentration to the national authority ( Royal Philips Electronics v Commission, paragraph 62 above). Such decisions also produce binding legal effects since they have the effect of changing the legal rules applicable to the operation at issue, namely Article 81 EC and the separate and distinct procedure provided for in Regulation No 1/2003 ( Assicurazioni Generali and Unicredito v Commission, paragraph 62 above, paragraph 41) or national legislation on concentrations ( Royal Philips Electronics v Commission, paragraph 62 above, paragraph 282, Joined Cases T‑346/02 and T‑347/02 Cableuropa and Others v Commission [2003] ECR II‑4251, paragraphs 59 and 60).
127. In the present case, however, the contested act does not expressly declare the notified measure compatible with Community law, nor does it have the effect of changing the law applicable to the notified measure. The legal framework laid down by Directive 2002/21 was applicable before the measure was notified to the Commission and remains applicable irrespective of the position adopted by the Commission in the letter of 30 January 2006. The contested act does not therefore produce binding legal effects and the way the cases cited in the previous paragraph were decided cannot therefore be transposed to the present case.
128. Second, it should be pointed out that review of State aid and concentrations with a Community dimension falls within the exclusive competence of the Commission, pursuant to Article 88(3) EC (see, to that effect, Case 78/76 Steinike & Weinlig
[1977] ECR 595, paragraph 9), and to Article 21(2) of Regulation No 139/2004, respectively. Subject to review by the Community judicature, only the Commission therefore may decide on the compatibility of such a concentration or of State aid with the common market. It follows that it is only at Community level that interested parties can usefully submit any comments that they might have. In the present case, however, given that the measures referred to in Directive 2002/21 are in principle adopted at national level and not by the Commission, it is sufficient that interested parties be heard at the national level, at least if the Commission confines itself to making comments under Article 7(3) of Directive 2002/21. There is nothing to prevent interested parties from raising before national authorities and courts or tribunals the issue of the compatibility of the proposed measure with Community law.
129. Vodafone’s arguments based on the safeguarding of its procedural rights do not therefore warrant the contested act being characterised as an act amenable to review under Article 230 EC either.
130. In the fifth place, Vodafone states that, in various documents, the Commission describes letters sent pursuant to Article 7(3) of Directive 2002/21 as ‘decisions’. It refers in that connection to the press release of 31 January 2006 (IP/06/97) concerning the contested act, to the request for additional information addressed to the CMT, to the decision refusing access to documents under Regulation No 1049/2001 of 11 May 2006, to Communication COM (2006) 28 final (pp. 5 and 10), to Recommendation 2003/561, to Memo 06/59 of 7 February 2006, to the press release of 20 October 2006 (IP/06/1439) and to the speech delivered by the Information Society Commissioner on 16 November 2006.
131. It is clear, however, that the Commission’s use of the word ‘decision’ in those documents, some of which were intended for the general public, does not relate to the legal term ‘decision’ as defined in Article 249 EC. In none of the documents cited in the previous paragraph does the Commission state that its comments under Article 7(3) of Directive 2002/21 would produce binding legal effects or would be binding on NRAs.
132. On the contrary, the press release of 31 January 2006 relating to the contested act confirms that the Commission’s comments under Article 7(3) of Directive 2002/21 have no binding legal effect. In its press release, the Commission emphasised that ‘[t]he Article 7 consultation mechanism is not an approval regime’.
133. In any event, even if the documents cited in paragraph 130 above were to show that the Commission misconstrued its role under Article 7 of Directive 2002/21, which is not the case, that would not affect the applicable regulatory framework according to which the Commission only makes ‘comments’, under Article 7(3) of Directive 2002/21, of which the notifying NRA ‘shall take the utmost account’.
134. It follows that the context in which the contested act was adopted shows that it produces no binding legal effects.
The content of the contested act
135. It is also necessary to consider the content of the contested act in order to assess whether, despite the applicable regulatory framework, the contested act none the less seeks to produce binding legal effects.
136. It is apparent from the content of the letter of 30 January 2006 that the Commission had no intention whatsoever of investing it with binding legal effects.
137. Thus, in its first comment in the contested act relating to the competitive conditions at the retail level, the Commission noted that the CMT had not found collective dominance at the retail market and observed in that respect that ‘in order to find [joint significant market power] in the wholesale market of mobile access and call origination, it [was] not indispensable to find [joint significant market power] at the retail level’. The Commission then examined the ‘competitive conditions at the retail level’ and analysed whether they were conclusive as regards the finding of joint significant market power at the wholesale level. It further commented on the ‘level of rents at the retail level’ which the CMT had to demonstrate in order to establish the existence of incentives for tacit collusion at the wholesale level and stated that a ‘finding of collective dominance raise[d] particularly complex issues of an economic nature’, before observing that, although the aggregate data provided was ‘valuable and informative, data regarding the evolution of prices on a less aggregate basis would provide a better indication’. Consequently, the Commission invited the CMT to monitor ‘for the purpose of a future market review’ the evolution of retail prices by market segment and/or customer profiles. It noted, lastly, that the retail market appeared to be characterised by a number of structural features which appeared to provide sufficient incentives to the operators to collectively refuse access to Mobile Virtual Network Operators.
138. The first comment of the contested act affects the legal position of the CMT at the very most so far as concerns future market reviews which it would carry out. However, it does not affect in the slightest the CMT’s legal position so far as concerns the adoption of the measure which it had notified to the Commission (and to the other NRAs) and still less Vodafone’s legal position.
139. In a second comment, which concerns the focal point, the Commission noted in the contested act that the CMT had found the existence of such a point, which was transparent, consisting in the denial of wholesale access to third parties. Despite the fact that the CMT had not identified a focal point at the retail level, which was not indispensable, the Commission deemed it plausible in the contested act, in the light of the alignment of commercial strategies of the three network operators, that the slightest deviation towards more aggressive price competition should be easily detected.
140. The content of that second comment also shows that it does not seek to produce binding legal effects.
141. In its third comment, which concerns the retaliation mechanism, the Commission observed, in the case of the wholesale market, that that mechanism could be ‘implemented’, but that the ‘CMT could have provided further evidence’ on ‘whether such mechanism would be more immediate and [was] sufficiently strong to discipline the deviating firm’. It went on to state that ‘NRAs are invited to assess in a market review whether the non deviator [mobile network operators] could easily conclude a contract with a [mobile virtual network operator], whose entry and specific commercial strategy is likely to discipline the deviator [mobile network operator]’. The Commission examined the possibilities of retaliation at the retail level, to which the CMT also refers. It took the view that overall there were credible retaliation mechanisms at that level.
142. That comment in the contested act does not change the legal position of the CMT either in so far as concerns the adoption of the measure which it had notified to the Commission (and to the other NRAs) and still less Vodafone’s legal position.
143. In a fourth comment, which relates to the close monitoring of the market and entry of the fourth mobile network operator, the Commission observed in the contested act that Xfera had not yet entered the market and it invited ‘the Spanish authorities to explore appropriate measures in order to ensure efficient use of the available spectrum’. The Commission advised the CMT to closely monitor the effects of a possible entry of Xfera in 2006 on the future sustainability of the collectively dominant position and added that any ‘concrete evidence of developments in the retail market not linked to the regulatory measures in the relevant market that would cast doubt on the sustainability of the collectively dominant position will require a review of the relevant market’. It pointed out that such a review should be notified to it in accordance with Article 7(3) of Directive 2002/21 .
144. Nor does that comment of the contested act change the legal position of the CMT so far as concerns the adoption of the measure that it had notified to the Commission (and to the other NRAs), and still less Vodafone’s legal position. It merely requires the CMT to monitor closely the entry of the fourth network operator on the market concerned and to carry out, where appropriate, a review of the market. The fact that such a review would have to be notified to the Commission (and to other NRAs) stems directly from Article 7(3) of Directive 2002/21, which requires prior notification in respect of market analyses falling within the scope of Article 16 of that directive.
145. Lastly, the Commission concluded its letter by stating that the additional information provided by the CMT during the notification process had been crucial in the Commission’s assessment of the CMT’s notification and it requested the CMT ‘to base its final measure on the most recent available information’.
146. That appears to be more a recommendation or a piece of advice than a legally binding obligation. In any event, that comment does not affect the applicant’s legal position.
147. Analysis of the various comments made by the Commission in the contested act does not therefore show that it seeks to produce binding legal effects. In any event, it must be pointed out that, according to well-established case-law, whatever the grounds on which an act is based, only its operative part is capable of producing legal effects (Case T‑138/89 NBV and NVB v Commission
[1992] ECR II‑2181, paragraph 31, and Case T‑213/00 CMA CGM and Others v Commission
[2003] ECR II‑913, paragraph 186). However, the contested act does not contain an operative part.
148. None the less, in Vodafone’s submission, the following statement at the end of the contested act constitutes its operative part: ‘Pursuant to Article 7(5) of … Directive [2002/21], CMT must take the utmost account of comments of other NRAs and the Commission and may adopt the resulting draft measure and, where it does so, shall communicate it to the Commission.’ It relies on the omission in that quotation of the words ‘except in cases covered by paragraph 4’ which appear in Article 7(5) of Directive 2002/21 .
149. In this respect, it is sufficient to note that the fact that Article 7(5) of Directive 2002/21 is reproduced merely confirms the non‑binding nature of the contested act (see paragraph 93 above). The omission to which Vodafone refers can be explained by the fact that the contested act falls entirely within the scope of the procedure of Article 7(3), and that the conditions of Article 7(4) of Directive 2002/21 are not satisfied. Only the initiation of a procedure under Article 7(4) of Directive 2002/21 could have led in the present case to the adoption of a measure having binding legal effects.
150. It follows that neither the content of the contested act nor the legal context in which it was adopted show that it constitutes an act producing binding legal effects. It is not therefore an act which is amenable to review under Article 230 EC. This action must therefore be declared inadmissible.
151. In any event, the Court considers that even if the contested act did constitute an act open to challenge, Vodafone would not have standing to bring proceedings for the reasons set out below.
2. Vodafone’s standing to bring proceedings
Arguments of the parties
152. The Commission and the Kingdom of Spain submit that the contested act is not of direct concern to Vodafone within the meaning of the fourth paragraph of Article 230 EC.
153. Vodafone submits that the contested act is of direct concern to it. The CMT’s adoption of its decision was automatic in view of the content of the contested act. The possibility that the CMT might not have given effect to the contested act was purely theoretical and its intention to act in conformity with the Commission’s comments was not in doubt (Case 62/70 Bock v Commission [1971] ECR 897; Case 11/82 Piraiki-Patraiki and Others v Commission
[1985] ECR 207, paragraphs 8 to 10, and Case C‑386/96 P Dreyfus v Commission
[1998] ECR I‑2309, paragraph 44; Cableuropa and Others v Commission, paragraph 126 above, paragraph 66). The fact that the CMT intended to implement the proposed measure as soon as it had received the Commission’s endorsement is clear from the fact that, on 31 January 2006, the day after the Commission adopted the contested act, and before the CMT convened to adopt the proposed measure, it had issued a press release stating that, having received the approval of the Commission of its analysis, it would impose its proposed regulatory obligations to guarantee access of third parties to the networks of the three mobile operators.
154. In this respect, Vodafone draws an analogy between the present case and that in Bock v Commission, paragraph 153 above, in which the Court of Justice held that the authorisation granted by the Commission to a Member State to refuse an import licence directly concerned the applicant in that case, since the appropriate German authorities had already informed the applicant that they would reject its application as soon as the Commission had granted them the requisite authorisation (paragraph 7 of the judgment).
155. The procedure of the present case may also, in Vodafone’s submission, be compared with control of concentrations and State aid proceedings, since the Commission’s decision in such proceedings does not require implementation of the notified concentration or grant of the notified State aid either but simply clears away the final hurdle to adoption of the notified measure, which does not prevent the Commission’s decision from having direct effect, including vis-à-vis third parties (Case T‑177/04 easyJet v Commission
[2006] ECR II‑1931, paragraph 32). It further states that the contested act directly affected its legal position by depriving it of the procedural rights which it would have enjoyed during the second phase of the examination.
156. Lastly, Vodafone submits that the contested act is of individual concern to it within the meaning of the fourth paragraph of Article 230 EC, and moreover this does not appear to be contested by the Commission. It states in that respect that it is part of a group of only three undertakings which are specifically referred to in the contested act, that it was the subject of the imposition of ex ante control obligations under Article 16 of Directive 2002/21 and that it is furthermore an interested party within the meaning of Article 6 of the Directive. It also points out that it participated in the administrative procedure before the Commission during the first phase of the examination of draft measure ES/2005/0330, submitted comments on the draft measure and would have been entitled to participate in the in‑depth proceedings before the Commission had the second phase of the procedure been initiated.
Findings of the Court
157. It is settled case‑law that, under the fourth paragraph of Article 230 EC, individuals may challenge an act or a decision producing legal effects in their regard only if that act or decision is of both direct and individual concern to them. (Case 25/62 Plaumann v Commission
[1963] ECR 95, and Case C‑50/00 P Unión de Pequeños Agricultores v Council
[2002] ECR I‑6677, paragraph 44; see also, to that effect, Royal Philips Electronics v Commission, paragraph 62 above, paragraphs 272 and 291).
158. For a contested Community act to be of direct concern to a natural or legal person, it must directly affect the legal situation of the person concerned and its implementation must be purely automatic and result from Community rules alone without the application of other intermediate rules ( Dreyfus v Commission, paragraph 153 above, paragraph 43; Royal Philips Electronics v Commission, paragraph 62 above, paragraph 272; order of 9 January 2007 in Case T‑127/05 Lootus Teine Osaühing v Council, not published in the ECR, paragraph 39).
159. That is the case, in particular, where the possibility that addressees will not give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt ( Piraiki-Patraiki and Others v Commission, paragraph 153 above, paragraphs 8 to 10; Dreyfus v Commission, paragraph 153 above, paragraph 44; Case T‑54/96 Oleifici Italiani and Fratelli Rubino v Commission
[1998] ECR II‑3377, paragraph 56, and Royal Philips Electronics v Commission, paragraph 62 above, paragraph 273).
160. That is not the case here, having regard to the central role exercised by the NRAs for the purposes of achieving the objectives of Directive 2002/21 (see paragraphs 72 to 74 above). The procedure under Article 7(3) of Directive 2002/21 constitutes a consultation and cooperation procedure between NRAs and the Commission in the context of which not only the Commission, but also other NRAs may, in accordance with Article 7(3) of Directive 2002/21, make comments on a notified draft measure. Even though, in accordance with Article 7(5), the CMT must take ‘the utmost account of comments of other [NRAs] and the Commission’, it has some leeway to determine the content of the final measure, so that a Community act based on Article 7(3) of Directive 2002/21 cannot be regarded as directly affecting the legal situation of the undertakings concerned.
161. Vodafone cannot claim that the fact that the NRA might not adopt the draft measure once the Commission’s comments have been presented is only a theoretical possibility. Even if there is a strong probability that the NRA concerned will in fact adopt the draft measure, it is for that authority alone to decide whether to adopt that measure and to determine its content.
162. The legal effects of the act contested in the present case – were it to constitute an act open to challenge – therefore differ fundamentally from the legal effects of a Commission decision declaring State aid or a concentration compatible with the common market. The addressee of such a decision no longer has any leeway to determine the content of the final measure, whereas the addressee of comments retains such leeway under Article 7(3) of Directive 2002/21.
163. CMT’s situation in the present case also differs fundamentally from that of the German authorities in the case that gave rise to the judgment in Bock v Commission, paragraph 153 above. In that case, the German authorities had requested authorisation from the Commission to refuse the grant of an import licence. The German authorities had informed the applicant that its application would be rejected once they had received the Commission’s authorisation. The authorisation granted by the Commission thus directly affected the applicant’s legal situation. In the present case, however, in view of the CMT’s leeway in implementing the contested act, limited as it might be, that act must be regarded as not directly affecting Vodafone’s legal situation.
164. Nor can Vodafone’s argument that the contested act is of direct concern to it on account of the procedural rights of which it is deprived by the decision not to initiate the second phase of the procedure provided for in Article 7(4) of Directive 2002/21 succeed.
165. It must be pointed out in this respect that, in view of the fact that the measures referred to in Article 16 of Directive 2002/21 are adopted by NRAs, Article 6 of that directive grants procedural rights to interested parties under the procedure before the NRA which national courts or tribunals are required to safeguard in accordance with Article 4 of the Directive. Under that national procedure, interested parties may submit their comments on any possible incompatibility of the measure with the common market.
166. This case is therefore distinguishable from the cases on State aid and on control of concentrations to which Vodafone refers. Since the Commission has sole jurisdiction to assess the compatibility with the common market of State aid or a concentration having a Community dimension, non-initiation of the second phase of the procedure may deprive interested parties of the opportunity to submit their comments before the sole competent authority. In the present case, however, Vodafone was able to submit its comments to the authority competent to adopt the final decision, namely the CMT, and it may plead infringement of its procedural rights before the national courts or tribunals. The non-initiation of the second phase of the procedure did not therefore deprive it of its procedural rights under Directive 2002/21.
167. It must therefore be held that the contested act is not of direct concern to Vodafone for the purposes of the fourth paragraph of Article 230 (EC).
168. It follows that, even if the contested act did constitute an act amenable to review under Article 230 CE, Vodafone does not have the standing to bring proceedings required by the fourth paragraph of that article.
169. In the light of all the foregoing, this action must be dismissed as inadmissible.
Costs
170. Under Article 87(2) 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. Since Vodafone has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
171. In accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs. The Kingdom of Spain will therefore bear its own costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Vodafone España SA and Vodafone Group plc shall bear their own costs and pay those incurred by the Commission.
3. The Kingdom of Spain shall bear its own costs.
Luxembourg, 12 December 2007.