Keywords

Summary



Keywords

1. Approximation of laws – Telecommunications sector – Electronic communications networks and services – Roaming on public mobile telephone networks within the Community – Regulation No 717/2007 – Legal basis – Article 95 EC – Validity

(Art. 95 EC; European Parliament and Council Regulation No 717/2007)

2. Approximation of laws – Telecommunications sector – Electronic communications networks and services – Roaming on public mobile telephone networks within the Community – Regulation No 717/2007 – Articles 4 and 6(3) – Infringement of the principle of proportionality – Lack

(Art. 95(3), EC; European Parliament and Council Regulation No 717/2007, Arts 4 and 6(3))

3. Approximation of laws – Telecommunications sector – Electronic communications networks and services – Roaming on public mobile telephone networks within the Community – Regulation No 717/2007 – Articles 4 and 6(3) – Infringement of the principle of subsidiarity – Lack

(Art. 5, second para., EC and 95 EC; European Parliament and Council Regulation No 717/2007, Arts 4 and 6(3))

Summary

1. In accordance with Article 1 of Regulation No 717/2007 on roaming on public mobile telephone networks within the Community and recitals 16 and 38 in the preamble thereto, the regulation introduces a common approach so that users of terrestrial public mobile telephone networks do not pay excessive prices for Community-wide roaming services and so that mobile operators can operate within a single coherent regulatory framework based on objectively established criteria. It thus aims to contribute to the smooth functioning of the internal market in order to achieve a high level of consumer protection and maintain competition among operators of mobile telephone networks.

The Community legislature, wishing to maintain competition between mobile network operators, chose to act in order to pre-empt the measures that would probably have been adopted by the Member States using their residual powers in consumer protection matters. In the light of the functioning of the roaming markets and the considerable interdependence of retail and wholesale charges for roaming services, a heterogeneous development of the national legislation seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of Community-wide roaming services would have been liable to disrupt the smooth functioning of the Community-wide roaming market. Such a situation justifies the European Union legislature in pursuing the objective of safeguarding the proper functioning of the internal market through the adoption of harmonised rules.

It follows from the foregoing that the object of Regulation No 717/2007 is indeed to improve the conditions for the functioning of the internal market and that it could be adopted on the basis of Article 95 EC.

(see paras 38, 46-48)

2. With regard to judicial review of compliance with the conditions following from the principle of proportionality, in the exercise of the powers conferred on it the Community legislature enjoys a broad discretion in areas in which its action involves political, economic and social choices and in which it is called upon to undertake complex assessments and evaluations.

However, even though having broad discretion, the Community legislature must base its choice on objective criteria. Furthermore, in assessing the constraints connected with different possible measures, it must consider whether the objectives pursued by the measure adopted are such as to justify negative economic consequences, even considerable, for certain operators.

In that regard, the Community legislature did not, by the adoption, in Article 4 of Regulation No 717/2007 on roaming on public mobile telephone networks within the Community, of tariff ceilings for retail charges in addition to the tariff ceilings for wholesale charges, exceed the limits of its discretion. The same is true of the obligation to provide information laid down in Article 6(3) of that same regulation, given that that provision reinforces the effectiveness of the regulation of retail charges and is therefore justified by the objective of consumer protection.

In that regard, it must be borne in mind that, before drafting the proposal for a regulation, the Commission carried out an exhaustive study, the result of which is summarised in an impact analysis. It follows that it examined various options including, inter alia, the option of regulating retail charges only, or wholesale charges only, or both, and that it assessed the economic impact of those various types of regulation and the effects of different charging structures.

In the light of the importance of the objective of consumer protection within the context of Article 95(3) EC, intervention that is limited in time in a market that is subject to competition, which makes it possible, in the immediate future, to protect consumers against excessive prices, such as that at issue, even if it might have negative economic consequences for certain operators, is proportionate to the aim pursued. It follows that Articles 4 and 6(3) of Regulation No 717/2007 do not infringe the principle of proportionality.

(see paras 52-53, 55, 69-71)

3. Where the Community legislature uses Article 95 EC as a legal basis, the principle of subsidiarity applies, inasmuch as that provision does not give it exclusive competence to regulate economic activity on the internal market.

Therefore, the provisions of Articles 4 and 6(3) of Regulation No 717/2007 on roaming on public mobile telephone networks within the Community are not invalidated by any infringement of the principle of subsidiarity.

As is clear from recital 14 in the preamble to the regulation, the interdependence of retail and wholesale charges for roaming services is considerable, so that any measure seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of Community-wide roaming services would have been liable to disrupt the smooth functioning of the Community-wide roaming market. For that reason, the Community legislature decided that any action would require a joint approach at the level of both wholesale charges and retail charges, in order to contribute to the smooth functioning of the internal market in those services.

That interdependence means that the Community legislature could legitimately take the view that it had to intervene at the level of retail charges as well. Thus, by reason of the effects of the common approach laid down in that regulation, the objective pursued by that regulation could best be achieved at Community level.

(see paras 75, 77-79)