OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 19 November 2009 1( )

Joined Cases C‑317/08 to C‑320/08

Rosalba Alassini and Others

(Reference for a preliminary ruling from the Giudice di pace di Ischia (Italy))

(Legal disputes between end-users and providers in the area of electronic communications – Directive 2002/22/EC – Mandatory out-of-court dispute resolution as a condition for the admissibility of legal proceedings – Principle of effective judicial protection)





I – Introduction

1. Does Community law preclude a national rule that makes certain types of legal action relating to telecommunications services subject to a mandatory requirement that an attempt be made to achieve an out-of-court settlement, without which proceedings in that regard may not be brought before the courts?

2. That is the question referred to the Court by the Giudice di pace di Ischia in relation to the present case. It provides an opportunity for the Court to adopt a position not only in relation to Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), ( ) but also, in particular, in relation to the principle of effective judicial protection.

II – Legal Framework

A – Community law

3. Directive 2002/22 concerns the provision of electronic communications networks and services to end-users. Article 1 provides that its aim is to ensure the availability throughout the Community of good quality publicly available services. In doing so, the directive establishes the rights of end-users and the corresponding obligations on providers. For the proposes of ensuring the provision of universal service, the directive defines the minimum set of services of specified quality to which all end-users should have access, at an affordable price in the light of specific national conditions, without distorting competition.

4. The 47th recital in the preamble to Directive 2002/22 concerns dispute resolution it states:

‘… Effective procedures should be available to deal with disputes between consumers, on the one hand, and undertakings providing publicly available communications services, on the other. Member States should take full account of Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes.’

5. Accordingly, Article 34 of Directive 2002/22, headed ‘Out-of-court dispute resolution’, provides:

‘(1) Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes, involving consumers, relating to issues covered by this Directive. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations to cover disputes involving other end-users.

(2) Member States shall ensure that their legislation does not hamper the establishment of complaints offices and the provision of on-line services at the appropriate territorial level to facilitate access to dispute resolution by consumers and end-users.

…

(4) This Article is without prejudice to national court procedures.’

B – National law

6. Law No 249 of 31 July 1997 provides that the Autorità per le garanzie nelle comunicazioni (Communications Regulatory Authority, ‘the Regulatory Authority’) is to be responsible for disputes between end-consumers and service providers in the area of telecommunications that concern a failure to comply with provisions relating to universal services and the rights of end-users.

7. By Decision No 173/07/CONS, ( ) the Regulatory Authority laid down the procedural rules for the resolution of disputes between telecommunications providers and end-users.

8. Articles 3 and 13 of Annex A to this decision provide, respectively:

Article 3

‘In respect of disputes of the kind referred to in Article 2(1), no court proceedings may be brought until the mandatory attempt to settle the dispute has been undertaken using the services of the Regional Communications Commission responsible for the geographical area concerned and authorised to conduct a settlement procedure, or using the services of the out-of-court dispute resolution bodies referred to in Article 13.

If the Regional Communications Commission responsible for the geographical area concerned is not authorised in accordance with paragraph 1 to conduct a settlement procedure, the mandatory attempt to settle the dispute must be undertaken using the services of the bodies referred to in Article 13.

The time-limit for completion of the settlement procedure shall be 30 days as from the date of the request; on expiry of the deadline the parties may bring court proceedings even if the procedure has not been completed.’

Article 13

‘1. As an alternative to having the settlement procedure conducted by the Regional Communications Commission, the parties concerned may undertake the mandatory attempt to settle the dispute, whether by means of electronic communication or otherwise, using the services of the out-of-court bodies for the resolution of consumer disputes referred to in point (o) of Article 1 of this decision.

2. Users may also, for those purposes, bring their case to the bodies established by agreement between the operators and the national associations of consumers’ representatives, provided that those bodies provide their services free of charge and observe the principles of transparency, fairness and effectiveness referred to in Recommendation 2001/310/EC.’

9. Article 5 of that decision, which is entitled ‘Transitional and final provisions’, provides:

‘(1) Pending the full implementation of the provisions referred to in Article 141(2) of Legislative Decree No 206 of 6 September 2005, the parties may undertake the attempt to settle the dispute by bringing their case to the settlement panels of the Chamber of Commerce, Industry, Agriculture and Trade or to the bodies entered in the register referred to in Article 38 of Legislative Decree No 5 of 17 January 2003.

(2) In the case of disputes that have arisen prior to the date of entry into force of this decision, even if they are at the settlement stage, the former provisions, referred to in Article 4(1), shall continue to apply …’

III – Facts, the question referred for a preliminary ruling and the main proceedings

10. The applicants in the main proceedings are recipients of telecommunications services. They have brought proceedings seeking an order requiring Telecom Italia SpA ( ) and Wind SpA ( ) to pay compensation for damages the claimants allegedly suffered as a result of a breach of the contracts for telephone services provided by the two companies. In addition, the applicant in Case C-319/08 has applied for a declaration that certain amounts claimed by Telecom Italia SpA are not due.

11. The telephone companies against which the actions have been brought claim, in each case, that the action is inadmissible since the applicants did not first attempt an out-of-court settlement of the dispute, in accordance with Articles 3 and 13 of Annex A to Decision No 173/07/CONS.

12. The referring court points out that, in the Campania region, the Regional Communications Commission provided for under the national rules has not been set up. For that reason, the mandatory dispute resolution procedure has to be undertaken using the services of the bodies provided for in Article 13 of Annex A to Decision No 173/07/CONS. However, it has not previously been determined whether, as provided for in Article 13 of Annex A to Decision No 173/07/CONS, those alternative dispute resolution bodies comply with the criteria set out in Recommendation 2001/310/EC, especially as regards the cost of the procedure.

13. However, even if a Regional Communications Commission had been set up for the Campania region, the referring court takes the position that the mandatory nature of the dispute resolution procedure represents an illegal barrier to access to the courts.

14. The referring court has doubts regarding the compatibility of the Italian provisions with Community law. For that reason, by decision of 4 April 2008, the referring court has stayed proceedings in all four of the main proceedings and has, in respect of each case, referred the following question to the Court for a preliminary ruling:

‘Do the Community rules referred to above (Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Directive 2002/22/EC, Directive 1999/44/EC and Commission Recommendations 2001/310/EC and 98/257/EC) have direct effect and must they be interpreted as meaning that disputes “in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users, as laid down in legislation, decisions of the Regulatory Authority, contractual terms and service charters” (the disputes contemplated by Article 2 of Annex A to Decision No 173/07/CONS of the Regulatory Authority) must not be made subject to a mandatory attempt to settle the dispute without which proceedings in that regard may not be brought before the courts, thus taking precedence over the rule laid down in Article 3(1) of Annex A to Decision No 173/07/CONS?’

15. By order of the President of the Court of 16 September 2008, Cases C‑317/08, C-318/08, C-319/08 and C-320/08 were joined for the purposes of the written and oral procedures and of the judgment.

16. The defendant in the main action in Case C-318/08, Wind SpA, the German Government and the Commission have made written and oral submissions to the Court. In addition, the Polish Government has made written submissions and the Italian Government oral ones.

IV – Legal assessment

A – Admissibility of the references for a preliminary ruling

17. At the hearing, the Italian Government submitted that the references for a preliminary ruling should be dismissed as inadmissible. The present cases concern the question whether the mandatory out-of-court dispute resolution procedure constitutes an illegal barrier to the enforcement of rights under Community law. However, the reference for a preliminary ruling does not indicate which rights are disputed in the main proceedings. For that reason, the questions referred for a preliminary ruling are hypothetical.

18. I agree with Italy that the introduction of mandatory procedures for out-of-court dispute resolution has to be examined in the light of Community law only where the dispute in the main action falls within the scope of Community law. ( )

19. In the present case, the referring court has not provided detailed information as regards the subject-matter of the cases pending before it. The references for a preliminary ruling merely state that, in the main proceedings, end‑users have brought actions for damages against their telephone providers in respect of a breach of the contract for telephone services provided by those companies. The referring court does not explain which rights and obligations are actually at issue in each case.

20. Nevertheless, I cannot reach the conclusion that the questions referred for a preliminary ruling are inadmissible.

21. In this respect, it must first be recalled that it is strictly for the national court before which a dispute has been brought to determine, in the light of the particular circumstances of the case, the need for a preliminary ruling. It is, after all, the national court which must assume responsibility for the subsequent judicial decision. For that reason, the Court is, in principle, bound to give a ruling on questions submitted for a preliminary ruling that concern the interpretation of Community law. ( )

22. It is only in exceptional circumstances that it is for the Court to examine the conditions in which the case was referred to it by the national court. ( ) According to settled case-law, the Court may therefore refuse to rule on a question referred by a national court where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( )

23. The cases in the main proceedings at issue here concern actions brought by end-users against telephone companies. Article 1(2) of Directive 2002/22 lays down the rights of end-users and corresponding obligations on undertakings providing electronic communications networks and services. In the text of the question referred for a preliminary ruling, the referring court explains that the main proceedings concern disputes in the area of electronic communications between end-users and operators concerning non-compliance with the rules on universal service and on the rights of end-users. Therefore, for the purposes of examining admissibility, it cannot be accepted that Community law does not apply and that the interpretation of Community law that is sought bears no obvious relation to the purpose of the main action.

24. The references for a preliminary ruling are therefore admissible.

B – Substantive assessment of the questions referred

25. In essence, the present case concerns the question whether Community law precludes a national rule which makes legal actions involving claims arising in connection with Directive 2002/22 conditional on a prior attempt to achieve an out-of-court settlement, without which proceedings in that regard may not be brought before the courts.

26. The question referred for a preliminary ruling mentions several Community provisions. First, it refers to Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees. ( ) Article 1(2)(b) of that directive defines consumer goods as tangible movable items. Given that the main actions do not concern tangible goods but telephone services, Directive 1999/44 does not apply.

27. In so far as the referring court mentions Recommendations 98/257/EC ( ) and 2001/310/EG, ( ) it must be made clear that, in accordance with Article 249(5) EC, these are not legally binding. Hence, they do not, in their own right, create obligations for Member States. However, they are to be used as an aid to interpretation in respect of other provisions of Community law and Member States’ laws.

28. Therefore, in the present case, Article 34 of Directive 2002/22 and the right to effective judicial protection are particularly relevant.

1. Article 34 of Directive 2002/22

29. Article 34 of Directive 2002/22 requires Member States to make available out-of-court procedures for dealing with unresolved disputes. Procedures should be transparent, simple and inexpensive. Member States should ensure that such procedures enable disputes to be settled fairly and promptly.

30. Article 34 thus lays down quality requirements which out-of-court dispute resolution must comply with. However, Article 34 does not expressly state whether out-of-court dispute resolution can also be made mandatory and imposed as a condition for the admissibility of legal action. Rather, Article 34(4) of Directive 2002/22 states clearly that it is without prejudice to national court procedures. Given that making the admissibility of legal action conditional on an attempt at dispute resolution falls within the scope of Member States’ rules governing court proceedings, Directive 2002/22 does not provide a conclusive answer to that question.

31. Provided that out-of-court dispute resolution fulfils the criteria set out in Article 34 of Directive 2002/22, by being transparent, simple and inexpensive, Directive 2002/22 as such does not preclude making such dispute resolution mandatory.

32. Below, I shall briefly deal with two of the criteria of the dispute resolution procedure required by the directive, namely transparency and inexpensiveness.

33. Article 13(2) of Annex A to Decision No 173/07/CONS provides that dispute resolution involving the bodies responsible for the resolution of consumer disputes is generally to be free of charge. The defendant in the main proceedings in Case C‑318/08 has stated that proceedings before the Regional Communications Commission are also free of charge and that the other bodies responsible for dispute resolution charge very little.

34. In addition, the procedure must be transparent. That means, inter alia, that the persons concerned must be in a position to establish which bodies are responsible for dispute resolution. According to the Italian provisions, this is, first and foremost, the Regional Communications Commission responsible for the geographical area concerned. In regions in which a regional communications commission has not been set up, alternative bodies are in charge of dispute resolution. It would appear that the legal provisions make it sufficiently clear to the applicants, with a reasonable amount of effort on their part, which bodies are responsible in the alternative.

35. It would appear that the Italian provisions fulfil the substantive requirements of Directive 2002/22. It is for the referring court to confirm that this is indeed the case.

36. In summary, Directive 2002/22 does not provide any indication whether a mandatory out-of-court dispute resolution procedure is permissible or not. Therefore, that question is to be assessed only in the light of the principle of effective judicial protection.

2. Principle of effective judicial protection

37. According to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. ( ) Furthermore, this principle was reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000. ( )

38. It must be pointed out at the outset that national legislation is to be reviewed in the light of the general principles of Community law only where it falls within the scope of application of Community law. ( )

39. Directive 2002/22 establishes substantive rights for end-users of telephone services. Given that the mandatory dispute resolution procedure affects the legal enforcement of the substantive rights arising under that directive, the present case falls within the scope of application of Community law.

40. In principle, it is for the national laws of each Member State to put in place procedures for the enforcement of Community law and to adopt procedural rules governing legal actions. At the same time, Member States are not entirely free to choose the procedural rules they put in place with regard to the application of Community law.

41. According to the Court’s settled case law, procedures aimed at safeguarding the enforcement of individuals’ rights under Community law must be no less favourable than those governing similar domestic situations (principle of equivalence). What is more, they must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). ( )

42. In respect of the judicial enforcement of Community law, the principle of effectiveness is an expression of the general principle of effective judicial protection. Therefore, I shall review the case first in the light of the general principle of effective judicial protection. Subsequently, I shall discuss the question of equivalence.

43. According to the Italian provisions, court proceedings must be preceded by an attempt at out-of-court dispute resolution. If no attempt at dispute resolution is made, such proceedings will be inadmissible. That provision thus creates an additional hurdle in respect of access to the courts. Much like any other condition governing admissibility, a mandatory requirement that an attempt be made to settle the dispute limits access to the courts. The principle of effective judicial protection is thus infringed.

44. The right to effective judicial protection is not granted unconditionally. Rather, access to judicial protection may be restricted. Every judicial procedure requires procedural rules and conditions governing admissibility. In this respect, Member States have a particularly broad discretion. As the Court has held in connection with compliance with procedural rules, restrictions must actually correspond to objectives in the general interest and must not be disproportionate with regard to the objective pursued in a way that infringes upon the very substance of the rights guaranteed. ( )

45. At the hearing, the Italian Government submitted that the aim of the mandatory requirement that an attempt be made to settle the dispute is the quicker and less expensive resolution of disputes. A quicker and less expensive resolution of disputes is, first of all, in the interest of the parties. At the same time, it lightens the burden on the court system as a whole and thus enhances the effectiveness of the administration of justice by the State. ( ) Finally, an agreement which the parties have reached out-of-court is frequently more likely to bring about the long-term resolution of the dispute than a judicial decision with which the parties are dissatisfied. ( ) Accordingly, the Italian provisions pursue legitimate objectives in the general interest.

46. Introducing a mandatory requirement that an attempt be made to settle the dispute out-of-court is suitable for the attainment of those objectives.

47. However, the introduction of a mandatory dispute resolution procedure is necessary only where dispute resolution that is merely optional is not an equally suitable, but less restrictive means of attaining the above objectives. However, I must concede to the Italian Government that an out-of-court dispute resolution procedure that is merely optional is not as efficient as a mandatory one that must be conducted before any legal action can be brought. The German Government also rightly points out that experience has shown that even in situations in which one or even both parties refuse to attempt to settle the dispute, the chances are that, during the procedure itself, opportunities for achieving a resolution of the problem that the parties did not recognise at the outset become apparent.

48. Finally, there is no great conflict between the stated aim of a quick and inexpensive resolution of a legal dispute reflecting the interests of the parties and the possible disadvantages that might result from the obligation to conduct a mandatory dispute resolution procedure. This is the case because the infringement of the right to judicial protection represented by the requirement to attempt out-of-court dispute resolution must be regarded as minor, so that the advantages associated with that procedure far outweigh any possible disadvantages.

49. On the one hand, the dispute resolution procedure that must precede legal action will delay the start of that legal action by very little. Article 3 of Annex A to Decision 173/07/CONS stipulates that the out-of-court procedure must be completed within 30 days of the date an attempt at settlement was requested. Even where this is not the case, the parties may commence legal proceedings after that deadline has expired.

50. Moreover, as already explained above, ( ) out-of-court dispute resolution is inexpensive.

51. Furthermore, for the duration of the attempt to achieve a settlement, the period of limitation for any claims is suspended. Therefore, attempting to achieve a settlement poses no risk in respect of the enforcement of rights.

52. In its order for reference, the referring court criticises one formal aspect of the dispute resolution procedure which might lead to the entire procedure being viewed as a disproportionate infringement. The referring court explains that the forms that must be used to apply for dispute resolution can be found on the internet site of the regulatory authority. That constitutes an obstacle for those claimants who do not have access to a computer. I agree with the referring court that, if it is true that dispute resolution can be applied for only by using a certain form which can be accessed only through the internet, access to dispute resolution – and with that, also, in the final analysis, to legal action – will be rendered considerably more difficult for persons without access to the internet. If this is indeed so, I take the view that there is a disproportionate infringement upon the right to judicial protection.

53. However, Article 13(1) of Annex A to Decision 173/07/CONS provides merely that an application may also be submitted electronically. The legal provisions submitted to the Court do not reveal that the necessary forms are available only through the internet. It is for the national court to examine, definitively, whether a potential claimant can reasonably be expected to access the forms needed for the dispute resolution procedure by different means.

54. Finally, I must examine the two recommendations on which the referring court seeks clarification. Contrary to the view of the referring court and the Polish Government, they do not call into question the validity of the conclusions set out above. Both Recommendation 98/257 (in recital 21 in its preamble) and Recommendation 2001/310 (in recital 14 in its preamble) refer to the fact that out-of-court procedures are not to replace judicial proceedings, for which reason persons who resort to out-of-court procedures must not be deprived of their right to bring the matter before the courts. However, the Italian provisions are not inconsistent with those recitals. The Italian provisions do not provide for the out-of-court procedure to stand in the place of court proceedings and access to the courts is therefore not denied, but at most delayed by a maximum of 30 days.

55. Moreover, Directive 2008/52 on certain aspects of mediation in civil and commercial matters ( ) supports that finding. Even though that directive does not apply to the present case, it reflects an approach that may be applied to the circumstances of this case. Article 5(2) of Directive 2008/52 states that that directive is to be without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system. As shown, the Italian provision fulfils those conditions; in particular, access to the judicial system is merely delayed.

56. Finally, the provisions at issue in the main proceedings do not infringe the principle of equivalence. According to that principle, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those which apply to similar situations which are governed only by domestic law. ( ) In response to a question raised by the Court during the hearing, the Italian Government did concede that, in Italy, mandatory dispute resolution has so far been put in place in the area of telecommunications alone. According to the Italian Government, mandatory dispute resolution has been introduced in that area first, with efforts currently under way to introduce it in other areas as well, such as the energy sector. In my view, this does not represent a breach of the principle of equivalence. Treatment is not less favourable than in purely domestic situations. First of all, there is no evidence that actions in other areas, such as, for example, the supply of energy, concern ‘similar situations’. Secondly, I have to assume that the provisions at issue in the main action apply not only to rights under Community law in the area of universal services, but equally to rights under national law.

57. In summary, I take the view that, in principle, a mandatory dispute resolution procedure without which judicial proceedings may not be brought does not constitute a disproportionate infringement upon the right to effective judicial protection. Provisions such as those at issue in the main proceedings constitute a minor infringement upon the right to enforcement by the courts that is outweighed by the opportunity to end the dispute quickly and inexpensively.

V – Conclusion

58. In the light of the foregoing observations, I suggest to the Court that it should answer the four references for a preliminary ruling from the Giudice di pace di Ischia as follows:

Article 34 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) requires that procedures for out-of-court dispute resolution must be transparent, simple and inexpensive. The principle of effective judicial protection does not preclude such procedures for out-of-court dispute resolution from being mandatory, provided they pursue legitimate objectives in the general interest and are not disproportionate with regard to the objective pursued.