UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese.
Date: 2014-04-30
36. In that judgment, the Court noted that the Framework Directive makes a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility. The Court stated that content and transmission are covered by different measures which pursue their own specific objectives (see UPC Nederland  EU:C:2013:709, paragraph 41).
37. The Court also pointed out that although customers of UPC Nederland BV take out a subscription for the purposes of gaining access to the basic cable package offered by that company, that does not mean that that company’s business, which consists in broadcasting programmes produced by the content editors (in this case radio and television channels) by transmitting those programmes to the connection point of its cable network in its subscribers’ homes, must be excluded from the definition of ‘electronic communications service’ within the meaning of Article 2(c) of the Framework Directive (see UPC Nederland  EU:C:2013:709, paragraph 43).
38. On the basis of those considerations, the Court concluded that the provision of a basic cable package falls within the definition of electronic communications service and, therefore, the substantive scope of the NRF, in so far as that service includes the conveyance of signals on the cable network (see UPC Nederland  EU:C:2013:709, paragraph 44).
39. Further, the Court stated that the fact that the transmission costs charged to subscribers incorporate the payments made to broadcasting channels and the royalties paid to copyright collecting societies in connection with the transmission of programme content cannot preclude the service supplied by UPC Nederland BV from being characterised as an ‘electronic communications service’ for the purposes of the NRF (see UPC Nederland  EU:C:2013:709, paragraph 46).
43. In that regard, it must be noted that the fact that the transmission of signals is by means of an infrastructure that does not belong to UPC is of no relevance to the classification of the nature of the service. All that matters in that regard is that UPC is responsible vis-à-vis the end-users for transmission of the signal which ensures that they are supplied with the service to which they have subscribed.
44. Any other interpretation would considerably reduce the scope of the NRF, undermine the effectiveness of its provisions and therefore compromise the achievement of the objectives pursued by that framework. Since the purpose of the NRF, as is apparent from recital 5 in the preamble to Directive 2009/140, is to establish a genuine internal market for electronic communications, in which those communications are ultimately to be governed by competition law only, the exclusion of the activities of an undertaking such as UPC from its scope, on the pretext that it is not the owner of the satellite infrastructure which enables signals to be transmitted, would deprive the NRF of much of its meaning (see, to that effect, UPC Nederland  EU:C:2013:709, paragraph 45).
61. According to the well-established case-law of the Court, the transmission of television signals falls within the rules of the Treaty on the provision of services (see, to that effect, Case C‑17/00 De Coster  EU:C:2001:651, paragraph 28, and Case C‑250/06 United Pan-Europe Communications Belgium and Others  EU:C:2007:783, paragraph 28).
63. A national measure in a sphere which has been the subject of full harmonisation at EU level must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty (see, in particular, Case C‑322/01 Deutscher Apothekerverband EU:C:2003:664, paragraph 64, and Case C‑265/12 Citroën Belux  EU:C:2013:498, paragraph 31).
69. Lastly, in Case C‑522/08 Telekomunikacja Polska EU:C:2010:135, paragraph 29, the Court, after finding that Article 20 of the Universal Service Directive applied without prejudice to national rules on consumer protection in conformity with EU law, ruled that the Framework Directive and the Universal Service Directive do not provide for full harmonisation of consumer-protection aspects.
70. In those circumstances, it must be noted that EU law has not been fully harmonised in the electronic communications services sector and, accordingly, the national legislation at issue in the main proceedings must be considered in the light of Article 56 TFEU so far as concerns those aspects that are not covered by the NRF.
72. In that regard it is sufficient to note that the right of an economic operator, established in a Member State, to provide services in another Member State, which Article 56 TFEU lays down, is not subject to the condition that the said operator also provides such services in the Member State in which he is established. Article 56 TFEU requires only that the provider be established in a Member State other than that of the recipient (see Case C‑46/08 Carmen Media Group  EU:C:2010:505, paragraph 43 and the case-law cited).
74. It should also be observed that no provision of the Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service in another Member State can no longer be regarded as the provision of services, and accordingly ‘services’ within the meaning of the Treaty may cover services varying widely in nature, including services which are provided over an extended period, even over several years (see Case C‑215/01 Schnitzer  EU:C:2003:662, paragraphs 30 and 31, and Joined Cases C‑357/10 to C‑359/10 Duomo Gpa and Others  EU:C:2012:283, paragraph 32).
75. Consequently, the mere fact that a business established in one Member State supplies identical or similar services with a greater or lesser degree of frequency or regularity in a second Member State, without having an infrastructure there enabling it to pursue a professional activity there on a stable and continuous basis and, from the infrastructure, to hold itself out to, amongst others, nationals of the second Member State, is not sufficient for it to be regarded as established in the second Member State ( Schnitzer  EU:C:2003:662, paragraph 32).
76. It must be noted, moreover, that the fact that an undertaking has established itself in one Member State in order to escape the legislation of another Member State does not preclude its broadcasts being regarded as services within the meaning of the Treaty. That is distinct from the question of what measures a Member State may take to prevent a provider of services established in another Member State from circumventing its domestic legislation (see Case C‑23/93 TV10  EU:C:1994:362, paragraph 15).
77. Furthermore, the exercise of a fundamental freedom for the purpose of benefiting from the more favourable legislation of another Member State does not in itself suffice to constitute abuse of that freedom (see, to that effect, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  EU:C:2006:544, paragraph 37).
92. It should be borne in mind in that regard that it has consistently been held that the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them (see, in particular, Case C‑279/12 Fish Legal and Shirley  EU:C:2013:853, paragraph 29).
93. Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that national court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Fish Legal and Shirley  EU:C:2013:853, paragraph 30).
101. So far as concerns the obligation under which an undertaking wishing to supply electronic communications services in a Member State other than that in which it is established is required to establish a branch or a separate legal entity there, it must be borne in mind that, according to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C‑475/11 Konstantinides  EU:C:2013:542, paragraph 44).
103. Admittedly, restrictions on that freedom may, in general, be allowed as derogations on grounds of public policy, public security or public health, as expressly provided for under Article 52 TFEU, which is applicable in this area by virtue of Article 62 TFEU, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (Case C‑470/11 Garkalns  EU:C:2012:505, paragraph 35).
104. However, a requirement of establishment is the very negation of the freedom to provide services and has the result of depriving Article 56 TFEU of all effectiveness (see, to that effect, Case 205/84 Commission  v Germany  EU:C:1986:463, paragraph 52, and Case C‑546/07 Commission  v Germany  EU:C:2010:25, paragraph 39).