Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado.
Date: 2016-10-19
28


Article 2(g) of the Framework Directive defines an ‘NRA’ as the body or bodies charged by a Member State with any of the regulatory tasks assigned in that directive and the Specific Directives. However, as the Court has previously had occasion to observe, neither the Framework Directive nor the Specific Directives specify the bodies of the Member States to which the latter must entrust the regulatory tasks assigned to their NRAs (see, to that effect, judgment of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraph 23).
29


It should be noted in that regard that it follows from Article 288 TFEU that the Member States are required, when transposing a directive, to ensure that it is fully effective, whilst retaining a broad discretion as to the choice of ways and means of ensuring that the directive is implemented. That freedom of choice does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it seeks to attain (see, to that effect, judgment of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraphs 24 and 25 and the case-law cited).
30


Therefore, although, in those circumstances, 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 accordance with the objectives and obligations laid down in that directive (judgments of 6 March 2008, Comisión del Mercado de las Telecomunicaciones, C‑82/07, EU:C:2008:143, paragraph 24; of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraph 26, and of 17 September 2015, KPN, C‑85/14, EU:C:2015:610, paragraph 53).
31


Accordingly, in the context of an institutional reform such as that at issue in the main proceedings, a Member State may assign to a multisectoral regulatory body the tasks incumbent on NRAs under the Framework Directive and the Specific Directives only if that body, in the performance of those tasks, meets the organisational and operational requirements to which those directives subject NRAs (see, by analogy, judgment of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraph 27).
33


Moreover, under Article 3(3a) of the Framework Directive, without prejudice to cases in which consultation and cooperation with other national authorities is required under Article 3(4) and (5), NRAs responsible for ex-ante market regulation or for resolution of disputes between undertakings must act independently and cannot seek or take instructions from any other body in relation to the exercise of the tasks assigned to them. Article 3(3a) also requires Member States to ensure that such NRAs have separate annual budgets, which are made public, and that NRAs have adequate financial and human resources to enable them to actively participate in and contribute to the BEREC.
36


It must therefore be concluded that the Framework Directive does not preclude, in principle, an NRA, within the meaning of the directive, merging with other national regulatory authorities or all those entities coming together to form a single multisectoral regulatory body, provided that, in performing the tasks entrusted to NRAs by the Framework Directive and the Specific Directives, that body meets the requirements of competence, independence, impartiality and transparency laid down by the Framework Directive and that an effective right of appeal is available against its decisions to a body independent of the parties involved (see, by analogy, judgments of 6 October 2010, Base and Others, C‑389/08, EU:C:2010:584, paragraph 30, and of 17 September 2015, KPN, C‑85/14, EU:C:2015:610, paragraph 57).
45


In that regard, it should be noted that while, in its initial version, the aim of Article 3 of the Framework Directive was essentially, as stated in recital 11 of that directive, to guarantee the independence and impartiality of NRAs by ensuring that regulation and operation are functionally separate, the intention of the EU legislature was, by means of Directive 2009/140 and as stated in recital 13 thereof, to strengthen the independence of NRAs in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions (see, to that effect, judgment of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni, C‑240/15, EU:C:2016:608, paragraphs 32 and 34).
47


The attainment of that objective of strengthening the independence and impartiality of NRAs now pursued by the Framework Directive, which finds expression in Article 3(3a) thereof, would be jeopardised if, merely as a result of an institutional reform such as that at issue in the main proceedings, it were possible to bring to an immediate and premature end the term of office of one or more members of the collegiate body running the NRA in question. If that were permissible, the risk of immediate dismissal on grounds other than those laid down in advance by national law, which may be faced by even a single member of such a collegiate body, may give rise to reasonable doubt as to the neutrality of the NRA concerned and its imperviousness to external factors and jeopardise its independence, impartiality and authority.
48


It should also be noted, as observed, in essence, by the Advocate General in point 45 of his Opinion, that, in the tasks assigned to them by the Framework Directive and the Specific Directives, NRAs are required, inter alia, to grant individual rights and to settle disputes between undertakings, have certain regulatory powers, in particular as regards price control, and may impose obligations on undertakings with significant power on a particular market. The Court has also held that, in performing the functions of regulating the electronic communications markets entrusted to them by the Framework Directive, NRAs have a broad discretion in order to be able to determine the need to regulate a market according to each individual situation, on a case-by-case basis (see, to that effect, judgment of 3 December 2009, Commission v Germany, C‑424/07, EU:C:2009:749, paragraphs 55 to 61).