KPN BV v Autoriteit Consument en Markt (ACM).
Date: 2015-09-17
33. According to settled case-law of the Court, 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 (judgment in T-Mobile Austria , C‑282/13, EU:C:2015:24, paragraph 32).
35. The first subparagraph of Article 5(1) of the Access Directive refers to the powers and responsibilities of the NRAs in respect of access and interconnection. That provision provides that, acting in pursuit of the objectives set out in Article 8 of the Framework Directive, those authorities are to encourage and where appropriate ensure, in accordance with the provisions of that directive, adequate access and interconnection, and interoperability of services, while promoting efficiency, sustainable competition, encouraging effective investments and innovation and giving the maximum benefit to end-users (see, to that effect, judgment in Commission  v Poland , C‑227/07, EU:C:2008:620, paragraph 64).
36. It must be borne in mind that the Court has already held in this regard that it follows from the wording of the first subparagraph of Article 5(1) of the Access Directive that the NRAs are responsible for ensuring adequate access and interconnection and also interoperability of services by means which are not exhaustively listed there (see, to that effect, judgment in TeliaSonera Finland , C‑192/08, EU:C:2009:696, paragraph 58).
37. In that context, in accordance with point (a) of the second subparagraph of Article 5(1) of that directive, and without prejudice to the steps which may be taken with regard to undertakings having significant market power under Article 8 thereof, those authorities must be able to impose ‘obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks’ solely in order to ensure end-to-end connectivity (see, to that effect, judgment in TeliaSonera Finland , C‑192/08, EU:C:2009:696, paragraph 59).
39. Accordingly, those provisions of the Framework Directive and the Access Directive allow NRAs to take steps with regard to an undertaking which does not have significant market power but which controls access to end-users (see, to that effect, judgment in TeliaSonera Finland , C‑192/08, EU:C:2009:696, paragraph 62).
40. According to Article 8(1) of the Access Directive, Member States must ensure that NRAs are empowered to impose the obligations identified in Articles 9 to 13a of that directive, including the obligations related to price control under Article 13 of that directive. Under Article 8(2) of that directive, where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of the Framework Directive, NRAs are required to impose those obligations on that operator.
41. In accordance with Article 8(3) of the Access Directive, without prejudice to certain provisions, including Article 28 of the Universal Service Directive, containing obligations on undertakings other than those designated as having significant market power, the NRAs may impose obligations relating to price control, as defined in particular in Article 13 of the Access Directive, only on operators designated as having significant power, in accordance with Article 8(2) of that directive.
42. Consequently, as the Advocate General stated in point 47 of his Opinion, Article 8(3) of the Access Directive should be interpreted as meaning that, except under certain provisions, including in particular Article 28 of the Universal Service Directive, NRAs may not impose obligations related to price control such as those laid down in Article 13 of the Access Directive on operators which do not have significant power on a given market. Accordingly, Article 8(3) of the Access Directive does not preclude the imposition of obligations related to price controls, such as those referred to in Article 13(1) of that directive, on an operator which does not have significant market power on the relevant market under Article 28 of the Universal Service Directive, provided that the conditions for the application of that provision are met.
43. It follows that NRAs may, under Article 28 of the Universal Service Directive, impose tariff obligations comparable to those referred to in Article 13(1) of the Access Directive on an operator which does not have significant market power but which controls access to end-users, if such an obligation constitutes a necessary and proportionate measure to ensure that end-users can access services using non-geographic numbers in the European Union, this being a matter for the national court to determine, having regard to all relevant circumstances, including the effect of the tariffs at issue on end-users’ access to such services.
45. Furthermore, Article 5(1) and (2) and Article 8(4) of the Access Directive set out the conditions which must be satisfied by the obligations imposed by NRAs on operators providing networks or electronic communication services in accordance with Article 5(1) and Article 8 of that directive.
46. Accordingly, Article 5(2) of the Access Directive provides that the obligations and conditions imposed under Article 5(1) must be objective, transparent, proportionate and non-discriminatory, and must be implemented in accordance with the procedures referred to in Articles 6, 7 and 7a of the Framework Directive.
47. According to Article 8(4) of the Access Directive, obligations imposed in accordance with that article must be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive, and those obligations may be imposed only following consultation in accordance with Articles 6 and 7 of the Framework Directive.
53. According to the case-law of the Court, although the Member States enjoy institutional autonomy as regards the organisation and the structuring of their NRAs within the meaning of Article 2(g) of the Framework Directive, that autonomy may be exercised only in full compliance with the objectives and obligations laid down in that directive (see judgments in Comisión del Mercado de las Telecomunicaciones , C‑82/07, EU:C:2008:143, paragraph 24, and in Base and Others , C‑389/08, EU:C:2010:584, paragraph 26).
54. In addition, the Court has already held that, under Article 3 of the Framework Directive, Member States must, in particular, ensure that each of the tasks assigned to NRAs be undertaken by a competent body, that the independence of those authorities be guaranteed by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services and that they exercise their powers impartially and transparently at the appropriate time. In addition, under Article 4 of the Framework Directive, decisions of those authorities must be made subject to an effective right of appeal to a body independent of the parties involved (see judgment in Base and Others , C‑389/08, EU:C:2010:584, paragraph 29).
55. In accordance with Article 3(2), (4) and (6) of the Framework Directive, the Member States must not only guarantee the independence of NRAs by ensuring that they are legally distinct from, and functionally independent of, all organisations providing electronic communications networks, equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken in accordance with the NRF by those authorities, in particular where the tasks are granted to several bodies, and notify to the Commission the names of the authorities entrusted with carrying out those tasks, and their respective responsibilities (see, to that effect, judgments in Comisión del Mercado de las Telecomunicaciones , C‑82/07, EU:C:2008:143, paragraph 25, and in UPC Nederland , C‑518/11, EU:C:2013:709, paragraph 52).
56. As a consequence, where those functions are to be discharged, even partially, by a national authority other than the NRA usually responsible for applying the NRF, each Member State must ensure that that other authority is neither directly nor indirectly involved in ‘operational functions’ within the meaning of the Framework Directive (see, to that effect, judgment in Comisión del Mercado de las Telecomunicaciones , C‑82/07, EU:C:2008:143, paragraph 26).
57. It follows that EU law authorises a Member State to assign tasks resulting from the application of the NRF to several bodies, provided that, in carrying out their functions, each of those bodies satisfies the conditions of competence, independence, impartiality and transparency required by the Framework Directive and that decisions which each of those bodies takes in the context of those functions can form the subject of an effective appeal to a body independent of the interested parties. It is for the referring court to determine whether the national authority which has imposed the tariff obligation at issue in the main proceedings meets all of those conditions.