Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA.
Date: 2015-04-16
34. However, in the first place, it is apparent from Article 7(3) of the Framework Directive that the obligation to implement the procedure laid down in that article is contingent not on the nature of the procedure in the context of which the NRA intends to take the measure at issue, but on the actual subject-matter of that measure and the effect that it may have on trade between Member States.
49. Neither the Framework Directive nor the Specific Directives contains any definition of the notion of ‘affect[ing] trade between Member States’ for the purpose of Article 7(3)(b) of the Framework Directive. However, recital 38 in the preamble to that directive states that measures that could affect trade between Member States are measures that may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might create a barrier to the single market.
50. As the Advocate General stated at points 61 to 64 of his Opinion, the definition of the notion of ‘affect[ing] trade between Member States’, for the purpose of Article 7(3)(b) of the Framework Directive is analogous to that of the notion of ‘affect[ing] trade between Member States’, for the purposes of Articles 101 TFEU and 102 TFEU, and must therefore have the same scope for the purpose of the application of Article 7(3) of that directive.
51. According to settled case-law concerning those articles, if an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States (judgments in Asnef-Equifax and Administración del Estado , C‑238/05, EU:C:2006:734, paragraph 34 and the case-law cited; Erste Group Bank and Others  v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 36; and Ordem dos Técnicos Oficiais de Contas , C‑1/12, EU:C:2013:127, paragraph 65).
52. In that respect, the Court has held that that effect must not, moreover, be insignificant (see inter alia, to that effect, judgments in Béguelin Import , 22/71, EU:C:1971:113, paragraph 16; Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 42; and Erste Group Bank and Others  v Commission , C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 36 and the case-law cited).
53. The Court has stated that the influence which a decision, an agreement or a practice may have on the pattern of trade between Member States is normally the result of a combination of several factors which, taken separately, are not necessarily decisive (see, to that effect, judgment in Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 43) and that, in order to assess whether an arrangement has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context (judgment in Asnef-Equifax and Administración del Estado , C‑238/05, EU:C:2006:734, paragraph 35), taking into account all the relevant factors of the individual case (judgment in Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 95). That effect is to be assessed in particular by reference to the nature of the agreement or practice at issue, the nature of the goods or services concerned and the position and the importance of the parties on the market (see, to that effect, judgment in Javico , C‑306/96, EU:C:1998:173, paragraph 17 and the case-law cited). In that regard, the Court has already held that where the services concerned have a cross-border dimension, that is a relevant factor in determining whether trade between Member States is affected (judgment in Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 94).
54. In the field of electronic communications, recital 38 in the preamble to the Framework Direct ive states that measures that could affect trade between Member States comprise measures that have a significant impact on operators or users in other Member States, that is to say, inter alia, measures which affect prices for users in other Member States, measures which affect the ability of an undertaking established in another Member State to provide an electronic communications service, in particular measures which affect the ability to offer services on a transnational basis, and, lastly, measures which affect market structure or access, leading to repercussions for undertakings in other Member States.
59. In the light of all of the foregoing, the answer to the first question is that Article 7(3) of the Framework Directive must be interpreted as meaning that a measure adopted by an NRA in order to ensure that end-users have access to non-geographic numbers in accordance with Article 28 of the Universal Service Directive affects trade between Member States, within the meaning of that provision, if it may have, other than in an insignificant manner, an influence, direct or indirect, actual or potential, on that trade, this being a matter for the referring court to determine.
The third question