Case C‑282/13

T-Mobile Austria GmbH

v

Telekom-Control-Kommission

(Request for a preliminary ruling

from the Verwaltungsgerichtshof)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Article 5(6) — Rights of use for radio frequencies and numbers — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision of a national regulatory authority — Meaning of ‘undertaking affected by a decision of a national regulatory authority’ — Article 9b — Transfer of individual rights to use radio frequencies — Reallocation of rights to use radio frequencies following the merger of two undertakings’

Summary — Judgment of the Court (Third Chamber), 22 January 2015

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Right of appeal against a decision of a national regulatory authority — Obligations of the Member States — Right of appeal afforded to undertakings competing with the addressee of the decision of the national regulatory authority

(European Parliament and Council Directives 2002/20, as amended by Directive 2009/140, Art. 5(6), and 2002/21, as amended by Directive 2009/140, Arts 4(1), 8(2) and 9b)

Articles 4(1) and 9b of Directive 2002/21 on a common regulatory framework for electronic communications networks and services and Article 5(6) of Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that an undertaking may be regarded as a person ‘affected’, for the purposes of Article 4(1) of Directive 2002/21, where that undertaking, which provides electronic communications networks or services, is a competitor of the undertaking or undertakings party to the procedure for the authorisation of a modification of their ownership structure and the addressees of the decision of the national regulatory authority, and where that decision is likely to have an impact on that first undertaking’s position on the market.

In the situation contemplated in Article 4 of Directive 2002/21, the Member States are required to provide for a right of appeal before an appellate body in order to protect the rights which users and undertakings derive from the EU legal order. It follows that the requirement to provide effective judicial protection, which is at the origin of Article 4, must also apply to users and undertakings which may derive rights from the EU legal order, in particular from the directives on electronic communications, and whose rights are affected by a decision taken by a national regulatory authority. Likewise, Article 8(2) of Directive 2002/21 places on Member States the obligation to ensure that the national regulatory authorities take all reasonable measures for the promotion of competition in the provision of electronic communications services, ensuring that there is no distortion or restriction of competition in the electronic communications sector and removing remaining obstacles to the provision of those services.

(see paras 34, 38, 48)

Case C‑282/13

T-Mobile Austria GmbH

v

Telekom-Control-Kommission

(Request for a preliminary ruling

from the Verwaltungsgerichtshof)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/20/EC — Article 5(6) — Rights of use for radio frequencies and numbers — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision of a national regulatory authority — Meaning of ‘undertaking affected by a decision of a national regulatory authority’ — Article 9b — Transfer of individual rights to use radio frequencies — Reallocation of rights to use radio frequencies following the merger of two undertakings’

Summary — Judgment of the Court (Third Chamber), 22 January 2015

Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Right of appeal against a decision of a national regulatory authority — Obligations of the Member States — Right of appeal afforded to undertakings competing with the addressee of the decision of the national regulatory authority

(European Parliament and Council Directives 2002/20, as amended by Directive 2009/140, Art. 5(6), and 2002/21, as amended by Directive 2009/140, Arts 4(1), 8(2) and 9b)

Articles 4(1) and 9b of Directive 2002/21 on a common regulatory framework for electronic communications networks and services and Article 5(6) of Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that an undertaking may be regarded as a person ‘affected’, for the purposes of Article 4(1) of Directive 2002/21, where that undertaking, which provides electronic communications networks or services, is a competitor of the undertaking or undertakings party to the procedure for the authorisation of a modification of their ownership structure and the addressees of the decision of the national regulatory authority, and where that decision is likely to have an impact on that first undertaking’s position on the market.

In the situation contemplated in Article 4 of Directive 2002/21, the Member States are required to provide for a right of appeal before an appellate body in order to protect the rights which users and undertakings derive from the EU legal order. It follows that the requirement to provide effective judicial protection, which is at the origin of Article 4, must also apply to users and undertakings which may derive rights from the EU legal order, in particular from the directives on electronic communications, and whose rights are affected by a decision taken by a national regulatory authority. Likewise, Article 8(2) of Directive 2002/21 places on Member States the obligation to ensure that the national regulatory authorities take all reasonable measures for the promotion of competition in the provision of electronic communications services, ensuring that there is no distortion or restriction of competition in the electronic communications sector and removing remaining obstacles to the provision of those services.

(see paras 34, 38, 48)