T-Mobile Austria GmbH v Telekom-Control-Kommission.
Date: 2015-01-22
21. T-Mobile Austria brought an appeal against that decision of the TCK before the Verwaltungsgerichtshof (Administrative Court; or ‘the referring court’). In support of that appeal, T-Mobile Austria argues that, in a procedure for authorisation, by the NRA, of the modification of the ownership structure of undertakings or of the transfer of rights to use radio frequencies, a competitor, which itself holds rights to use radio frequencies, must be regarded as ‘affected’ for the purposes of Article 4(1) of the Framework Directive. T-Mobile Austria relies, in that regard, on the judgment in Tele2 Telecommunication  (C‑426/05, EU:C:2008:103).
32. According to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only the wording of that provision, but also its context and the objectives pursued by the rules of which it is part (see, to that effect, judgments in Tele2 Telecommunication , EU:C:2008:103, paragraph 27, and The Number (UK) and Conduit Enterprises , C‑16/10, EU:C:2011:92, paragraph 28 and the case-law cited).
33. In this connection, it should be recalled that the Court has held that Article 4 of the Framework Directive follows from the principle of effective judicial protection, pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under EU law (see, to that effect, judgment in Tele2 Telecommunication , EU:C:2008:103, paragraph 30 and the case-law cited).
34. In the situation contemplated in Article 4 of the Framework Directive, the Member States are therefore 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 of the Framework Directive, 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 an NRA (judgment in Tele2 Telecommunication , EU:C:2008:103, paragraphs 31 and 31).
35. Having regard to those considerations, the Court has held, in a case concerning the market analysis procedure provided for in Article 16 of the Framework Directive, that undertakings competing with an undertaking with significant power on the relevant market, as potential beneficiaries of the rights corresponding to the specific regulatory obligations imposed by an NRA on that undertaking with significant market power, may be regarded as being ‘affected’, for the purposes of Article 4(1) of the Framework Directive, by decisions of that authority which amend or withdraw those obligations (see, to that effect, judgment in Tele2 Telecommunication , EU:C:2008:103, paragraph 36).
36. Moreover, the Court has held that, since the NRAs are obliged, under Article 8(2) of the Framework Directive, to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by, inter alia, ensuring that there is no distortion or restriction of competition in the electronic communications sector, a strict interpretation of Article 4(1) of the Framework Directive to the effect that that provision confers a right of appeal only on persons to whom the decisions of the NRAs are addressed would be difficult to reconcile with the general objectives and regulatory principles resulting, for the NRAs, from Article 8 of that directive, and, in particular, with the objective of promoting competition (see, to that effect, judgment in Tele2 Telecommunication , EU:C:2008:103, paragraphs 37 and 38).
38. It should also be observed that Article 8(2) of the Framework Directive places on Member States the obligation to ensure that the NRAs 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, to that effect, judgments in Centro Europa 7 , C‑380/05, EU:C:2008:59, paragraph 81, and Commission  v Poland , C‑227/07, EU:C:2008:620, paragraphs 62 and 63).