Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM).
Date: 2016-09-15
34


It should be recalled, however, that, in accordance with Article 288 TFEU, such a recommendation is, on principle, not legally binding. Moreover, the second subparagraph of Article 19(2) of the Framework Directive explicitly allows an NRA to depart from the Commission recommendations adopted on the basis of Article 19(1) of the Framework Directive, provided they inform the Commission and give it the reasons for their position.
35


It follows that the NRA, upon adoption of a decision by which it imposes tariff obligations on operators on the basis of Articles 8 and 13 of the Access Directive, is not bound by Recommendation 2009/396.
36


In that regard, it must be noted that the Court has already held that, in carrying out those regulatory functions, the NRAs have a broad discretion in order to be able to determine the need to regulate a market according to each situation on a case-by-case basis (judgment of 3 December 2009, Commission v Germany, C‑424/07
EU:C:2009:749, paragraph 61 and the case-law cited). This is the case in the context of price control, since recital 20 of the Access Directive states that the method of cost recovery should be appropriate to the circumstances taking account of the need to promote efficiency and sustainable competition and maximise consumer benefits.
37


Nevertheless, the second subparagraph of Article 19(2) of the Framework Directive requires NRAs, in carrying out their duties, to ‘take the utmost account’ of the Commission recommendations.
38


Accordingly, it is for the NRA, when imposing obligations concerning price control and cost accounting in accordance with Article 13 of the Access Directive, to follow, as a rule, the guidance contained in Recommendation 2009/396. It is only where it appears to the NRA, in its assessment of a given situation, that the ‘pure Bulric’ model advocated by this recommendation is not appropriate to the circumstances that it may depart from it, giving reasons for its position.
41


Nevertheless, according to the Court’s settled case-law, even if recommendations are not intended to produce binding effects, the national courts are bound to take them into consideration for the purpose of deciding disputes submitted to them, in particular where the recommendations cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions (judgment of 24 April 2008, Arcor, C‑55/06, EU:C:2008:244, paragraph 94 and the case-law cited).
46


As regards the first part of the second question, it should be noted that the first subparagraph of Article 8(1) of the Framework Directive provides that in carrying out the regulatory tasks specified in that directive and the specific directives, and therefore in particular in the Access Directive, the NRAs are to take all reasonable measures which are aimed at achieving the objectives set out in that article, namely to promote competition in the provision of electronic communications networks and electronic communications services, to contribute to the development of the internal market and to promote the interests of the citizens of the European Union. That provision provides, in addition, that such measures are to be proportionate to those objectives.
48


As regards the conditions allowing the NRA to impose on an operator designated as having significant market power on a relevant market a tariff obligation for the provision of fixed and mobile call termination services, it must be noted that Article 8(4) of the Access Directive provides that obligations imposed by the NRA, including those provided for in Article 13 of that directive, 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 that the obligations may only be imposed following consultation in accordance with Articles 6 and 7 of the Framework Directive (see, to that effect, judgment of 17 September 2015, KPN, C‑85/14, EU:C:2015:610, paragraph 47).