Case C‑508/14

Český telekomunikační úřad

v

T-Mobile Czech Republic a.s.

and

Vodafone Czech Republic a.s.

(Request for a preliminary ruling

from the Nejvyšší správní soud)

‛Reference for a preliminary ruling — Directive 2002/22/EC (Universal Service Directive) — Costing of universal service obligations — Taking account of the rate of return on equity capital — Direct effect — Scope ratione temporis’

Summary — Judgment of the Court (Fifth Chamber), 6 October 2015

Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Calculating the cost and financing of the universal service obligations — Applicability to the new Member States — Act of Accession 2003 does not contain special provisions concerning the application of the articles of that directive — Applicability to those Member States as from the date of accession

Questions referred for a preliminary ruling — Reference to the Court — Determination of the questions to be referred — Exclusive jurisdiction of the national courts — No possibility for the parties to change the wording of the questions — Obligation of the Court to abide by the questions as stated in the order for reference

Since, under Article 267 TFEU, it is for the national court or tribunal, not the parties to the main proceedings, to bring a matter before the Court, the right to determine the questions to be put to the Court devolves on the national court alone and the parties may not change their tenor. Moreover, to answer requests to amend the questions formulated by the parties in the main proceedings would be incompatible with the function given to the Court by Article 267 TFEU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties. (see paras 28, 29)

Articles 12 and 13 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding the net cost of the universal service obligation from including the ‘reasonable profit’ of the provider of that service, fixed at the rate of return on equity capital that would be required by an undertaking comparable to the universal service provider considering whether or not to provide the service of general economic interest for the whole duration of the period of entrustment, taking into account the level of risk. The level of risk depends on the sector concerned, the type of service and the characteristics of the compensation mechanism. The rate is defined as the internal rate of return which the undertaking obtains on the capital invested during the period of entrustment. That rate may be determined by taking comparable undertakings as a point of reference. (see paras 43-45, operative part 1)

See the text of the decision. (see paras 47, 48)

Articles 12 and 13 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as having direct effect and they may be relied on directly before a national court by individuals to challenge a decision of a national regulatory authority. Those provisions appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, in that they clearly state that any financing of the universal service obligations must be made on the basis of the calculation of the net cost, which must be interpreted as also including ‘reasonable profit’, equivalent to the rate of return on capital, and that that obligation is not qualified by any condition. Even though Directive 2002/22 allows the national regulatory authorities a certain degree of discretion when implementing those provisions, that does not alter the precise and unconditional nature of the obligation arising out of those provisions. (see paras 52-54, operative part 2)