Case C‑222/13

TDC A/S

v

Erhvervsstyrelsen

(Request for a preliminary ruling from the Teleklagenævnet)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Article 32 — Additional mandatory services — Compensation mechanism for the cost associated with providing those services — Meaning of ‘court or tribunal’ for the purposes of Article 267 TFEU — Lack of jurisdiction of the Court’

Summary — Judgment of the Court (Third Chamber), 9 October 2014

Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal for the purposes of Article 267 TFEU — Meaning — Teleklagenævnet (Danish Telecommunications Complaints Board) — Not included

(Art. 267 TFEU)

The Court of Justice has no jurisdiction to rule on a request for a preliminary ruling from the Teleklagenævnet.

In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

In particular, as far as the independence of the body making the reference is concerned, there are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings.

That criterion for independence is not fulfilled by the Teleklagenævnet, the Danish Telecommunications Complaints Board, and therefore it is not a court or tribunal for the purposes of Article 267 TFEU. It does not appear that the dismissal of its members is subject to specific guarantees which would dispel any reasonable doubt as to the independence of that body. Thus, members, subject to general rules of administrative law and employment law, may be removed from office by the Minister for Enterprise and Growth, who also has the power to appoint them. Furthermore, an appeal against a decision of the Teleklagenævnet may be made before the ordinary courts. If such an appeal is made, the Teleklagenævnet has the status of a defendant. That involvement of the Teleklagenævnet in proceedings challenging its own decision implies that, when it adopts that decision, the Teleklagenævnet is not acting as a third party in relation to the interests at stake and does not possess the necessary impartiality. That structuring of the legal remedies against a decision of the Teleklagenævnet thus emphasises the non-judicial nature of the decisions delivered by that body.

(see paras 27, 30, 31, 34-38, operative part)

Case C‑222/13

TDC A/S

v

Erhvervsstyrelsen

(Request for a preliminary ruling from the Teleklagenævnet)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Article 32 — Additional mandatory services — Compensation mechanism for the cost associated with providing those services — Meaning of ‘court or tribunal’ for the purposes of Article 267 TFEU — Lack of jurisdiction of the Court’

Summary — Judgment of the Court (Third Chamber), 9 October 2014

Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal for the purposes of Article 267 TFEU — Meaning — Teleklagenævnet (Danish Telecommunications Complaints Board) — Not included

(Art. 267 TFEU)

The Court of Justice has no jurisdiction to rule on a request for a preliminary ruling from the Teleklagenævnet.

In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.

In particular, as far as the independence of the body making the reference is concerned, there are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings.

That criterion for independence is not fulfilled by the Teleklagenævnet, the Danish Telecommunications Complaints Board, and therefore it is not a court or tribunal for the purposes of Article 267 TFEU. It does not appear that the dismissal of its members is subject to specific guarantees which would dispel any reasonable doubt as to the independence of that body. Thus, members, subject to general rules of administrative law and employment law, may be removed from office by the Minister for Enterprise and Growth, who also has the power to appoint them. Furthermore, an appeal against a decision of the Teleklagenævnet may be made before the ordinary courts. If such an appeal is made, the Teleklagenævnet has the status of a defendant. That involvement of the Teleklagenævnet in proceedings challenging its own decision implies that, when it adopts that decision, the Teleklagenævnet is not acting as a third party in relation to the interests at stake and does not possess the necessary impartiality. That structuring of the legal remedies against a decision of the Teleklagenævnet thus emphasises the non-judicial nature of the decisions delivered by that body.

(see paras 27, 30, 31, 34-38, operative part)