Case C‑556/12

TDC A/S

v

Teleklagenævnet

(Request for a preliminary ruling from the Østre Landsret)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/19/EC — Article 2(a) — Access to and use of specific network elements and associated facilities — Articles 5, 8, 12 and 13 — Competence of the national regulatory authorities — Obligation relating to access to and use of specific network elements and associated facilities — Undertaking with significant market power on a specific market — Drop cable connecting the distribution frame of the access network to the network termination point at the end-user’s premises — Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities — Directive 2002/21/EC — Article 8 — Policy objectives for the carrying out of the tasks of the national regulatory authorities’

Summary — Judgment of the Court (Third Chamber), 19 June 2014

Approximation of laws — Electronic communications networks and services — Access to and interconnection of networks and associated facilities — Directives 2002/19 and 2002/21 — Power of the national regulatory authorities to impose on an operator that has significant market power an obligation to install cables to enable end-users to have access to the fibre optic network — Lawfulness — Conditions — Observance of the principle of proportionality — Account to be taken of the initial investment made by the operator and the existence of a price control system

(European Parliament and Council Directives 2002/19, as amended by Directive 2009/140, Arts 2(a), 8, 12 and 13, and 2002/21, as amended by Directive 2009/140, Art. 8(1))

Articles 2(a), 8 and 12 of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, as amended by Directive 2009/140, must be interpreted as meaning that the national regulatory authority has the power to impose on an electronic communications operator that has significant market power on a specific market, pursuant to the obligation to meet reasonable requests for access to, and use of, specific network elements and associated facilities, an obligation to install, at the request of competing operators, a drop cable not exceeding 30 metres in length connecting the distribution frame of an access network to the network termination point at the end-user’s premises, as long as that obligation is based on the nature of the problem identified, proportionate and justified in the light of the objectives set out in Article 8(1) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, which is a matter for the referring court to verify.

In addition, Articles 8 and 12 of Directive 2002/19, read in conjunction with Article 13 of that directive, must be interpreted as meaning that a national regulatory authority, when minded to impose such an obligation, has to take into account the initial investment made by the operator concerned and the existence of a price control that makes it possible to recover the costs of installation.

(see paras 45, 47, 48, 54, operative part 1, 2)

Case C‑556/12

TDC A/S

v

Teleklagenævnet

(Request for a preliminary ruling from the Østre Landsret)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/19/EC — Article 2(a) — Access to and use of specific network elements and associated facilities — Articles 5, 8, 12 and 13 — Competence of the national regulatory authorities — Obligation relating to access to and use of specific network elements and associated facilities — Undertaking with significant market power on a specific market — Drop cable connecting the distribution frame of the access network to the network termination point at the end-user’s premises — Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities — Directive 2002/21/EC — Article 8 — Policy objectives for the carrying out of the tasks of the national regulatory authorities’

Summary — Judgment of the Court (Third Chamber), 19 June 2014

Approximation of laws — Electronic communications networks and services — Access to and interconnection of networks and associated facilities — Directives 2002/19 and 2002/21 — Power of the national regulatory authorities to impose on an operator that has significant market power an obligation to install cables to enable end-users to have access to the fibre optic network — Lawfulness — Conditions — Observance of the principle of proportionality — Account to be taken of the initial investment made by the operator and the existence of a price control system

(European Parliament and Council Directives 2002/19, as amended by Directive 2009/140, Arts 2(a), 8, 12 and 13, and 2002/21, as amended by Directive 2009/140, Art. 8(1))

Articles 2(a), 8 and 12 of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, as amended by Directive 2009/140, must be interpreted as meaning that the national regulatory authority has the power to impose on an electronic communications operator that has significant market power on a specific market, pursuant to the obligation to meet reasonable requests for access to, and use of, specific network elements and associated facilities, an obligation to install, at the request of competing operators, a drop cable not exceeding 30 metres in length connecting the distribution frame of an access network to the network termination point at the end-user’s premises, as long as that obligation is based on the nature of the problem identified, proportionate and justified in the light of the objectives set out in Article 8(1) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, which is a matter for the referring court to verify.

In addition, Articles 8 and 12 of Directive 2002/19, read in conjunction with Article 13 of that directive, must be interpreted as meaning that a national regulatory authority, when minded to impose such an obligation, has to take into account the initial investment made by the operator concerned and the existence of a price control that makes it possible to recover the costs of installation.

(see paras 45, 47, 48, 54, operative part 1, 2)