i-21 Germany GmbH (C-392/04) and Arcor AG & Co. KG (C-422/04) v Bundesrepublik Deutschland.
Date: 2006-09-19
23. It should be noted in that regard that Directive 97/13 was repealed by Article 26 of Directive 2002/21 with effect from 25 July 2003 in accordance with the second subparagraph of Article 28(1) of the latter directive.
28. In Joined Cases C-292/01 and C-293/01 Albacom and Infostrada [2001] ECR I‑9449, paragraph 25, the Court pointed out that Article 11(1) of Directive 97/13 provides that Member States are to ensure that any fees imposed on undertakings which hold individual licences seek only to cover the administration costs generated by the work involved in implementing those licences.
29. It is clear from the wording of that provision, as interpreted by the Court in paragraph 25 of Albacom and Infostrada , cited above, that that work must relate only to four activities, namely the issue, management, control and enforcement of individual licences. Furthermore, the fee must be proportionate to the work involved and be published in an appropriate and sufficiently detailed manner, so as to render the information readily accessible.
32. In this respect, it should be pointed out, first of all, that the concept of administrative costs is sufficiently wide to cover so-called ‘general’ administrative costs.
34. According to the information submitted to the Court, the calculation of the fee at issue in the main proceedings includes expenditure relating to other tasks such as the regulatory authority’s general supervisory activities and, in particular, monitoring possible abuses of a dominant position.
35. Since this form of monitoring goes beyond the work strictly generated by the implementation of individual licences, it follows that taking into account expenditure linked to this monitoring is contrary to Article 11(1) of Directive 97/13.
39. First, the calculation of the general costs over a period of 30 years entails an extrapolation of the expenditure that may be incurred in the future which, by definition, does not represent the expenditure actually incurred. In the absence of a mechanism to revise the amount of fee claimed, that amount cannot be strictly proportionate to the work involved, as Article 11(1) of Directive 97/13 expressly requires.
51. In accordance with the principle of legal certainty, Community law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final upon expiry of the reasonable time-limits for legal remedies or by exhaustion of those remedies (see Kühne & Heitz , paragraph 24). Compliance with that principle prevents administrative acts which produce legal effects from being called into question indefinitely (see, by analogy, Case C-310/97 Commission  v AssiDomän Kraft Products AB and Others  [1999] ECR I-5363, paragraph 61).
52. The Court has, however, acknowledged that there could be a limit to this principle in certain cases. Thus it held in paragraph 27 of the judgment in Kühne & Heitz  that the administrative body responsible for the adoption of an administrative decision is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review and possibly to reopen that decision if four conditions are fulfilled. First, the administrative body must, under national law, have the power to reopen that decision. Secondly, the administrative decision in question must have become final as a result of a judgment of a national court ruling at final instance. Thirdly, that judgment must, in the light of a decision given by the Court subsequent to it, be based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling in the circumstances set out in the third paragraph of Article 234 EC. Fourthly, the person concerned must have complained to the administrative body immediately after becoming aware of that decision of the Court.
53. The case giving rise to the judgment in Kühne & Heitz , however, was entirely different from those at issue in the main proceedings. Whilst the undertaking Kühne & Heitz NV had exhausted all legal remedies available to it, i-21 and Arcor did not avail themselves of their right to appeal against the fee assessments issued to them.
54. Accordingly, contrary to the argument advanced by i-21, the judgment in Kühne & Heitz  is not relevant for the purposes of determining whether, in a situation such as that in the main proceedings, an administrative body is under an obligation to review decisions which have become final.
57. It must be borne in mind that, according to settled case-law, in the absence of relevant Community rules, the detailed procedural rules designed to ensure the protection of the rights which individuals acquire under Community law are a matter for the domestic legal order of each Member State, under the principle of the procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see, inter alia, C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31, and Case C-201/02 Wells  [2004] ECR I-723, paragraph 67).
62. Next, in relation to the principle of equivalence, this requires that all the rules applicable to appeals, including the prescribed time-limits, apply without distinction to appeals on the ground of infringement of Community law and to appeals on the ground of disregard of national law.
70. In order to assess the degree of clarity of Article 11(1) of Directive 97/13 and to determine whether or not the incompatibility of the national law with that article is manifest, the objectives of that directive, which is among the measures adopted for the complete liberalisation of telecommunications services and infrastructures and is intended to encourage the entry of new operators onto the market, must be taken into account (see, to that effect, Albacom and Infostrada , cited above in paragraph 35). In that regard, the imposition of a very high fee to cover an estimation of the general costs over a period of 30 years is such as to seriously impair competition, as the national court points out in its references for a preliminary ruling, and constitutes a relevant factor in that assessment.