Tele2 Telecommunication GmbH v Telekom-Control-Kommission.
Date: 2008-02-21
25. It is settled case‑law that the different language versions of a provision of Community law must be uniformly interpreted, and thus, in the case of divergence between those versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C‑420/98 W.N.  [2000] ECR I‑2847, paragraph 21, and Case C‑56/06 Euro Tex  [2007] ECR I‑4859, paragraph 27).
26. It is also settled case‑law that the need for a uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question (see, inter alia, Case 327/82 Ekro  [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; and Case C‑195/06 Österreichischer Rundfunk  [2007] ECR I‑0000, paragraph 24).
27. Accordingly, the scope which the Community legislature intended to confer on the terms user ‘affected’ or undertaking ‘affected’ by a decision of a national regulatory authority for the purposes of Article 4(1) of the Framework Directive must be assessed in the light of the purpose of that article within the context of that directive.
30. As stated by the Advocate General in point 22 of his Opinion, Article 4 of the Framework Directive follows from the principle of effective judicial protection, which is a general principle of Community law stemming from the constitutional traditions common to the Member States and which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (Case C‑432/05 Unibet  [2007] ECR I‑2271, paragraph 37 and the case‑law cited), pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under Community law ( Unibet , paragraph 38 and the case‑law cited).
31. In the case covered by Article 4 of the Framework Directive, the Member States are required to provide for a right of appeal before an appellate body in order to protect the rights which users and undertakings derive from the Community legal order.
32. It follows that the requirement to provide effective judicial protection, which is at the origin of Article 4 of the Framework Directive, must apply to both users and undertakings which may derive rights from the Community legal order, in particular from telecommunications directives, and whose rights are affected by a decision taken by a national regulatory authority.
34. As pointed out by the Advocate General in point 29 of his Opinion, and as submitted by the applicant in the main proceedings and the Commission, certain specific obligations imposed on the undertaking with significant power on the relevant market in accordance with Article 16(3) and (4) of the Framework Directive and the provisions of the Access Directive which are cited therein are protective measures adopted in the interest of users and undertakings in competition with that undertaking with significant market power and are therefore capable of conferring rights on them. Those protective measures include, for example, those which may be adopted by national regulatory authorities under Article 8 of the Access Directive and the obligations of non‑discrimination between competitors and the obligations to give competitors access to specific network facilities and the use of such facilities, laid down respectively in Articles 10 and 12 of the latter directive.
36. It follows that users or undertakings competing with an undertaking with significant power on the relevant market must be considered to be potential beneficiaries of the rights corresponding to the specific regulatory obligations imposed by a national regulatory authority on that undertaking with significant market power pursuant to Article 16 of the Framework Directive and the telecommunications directives cited therein. Consequently, those users and undertakings may be regarded as being ‘affected’, within the meaning of Article 4(1) of the Framework Directive, by decisions of that authority which amend or withdraw those obligations.
37. Next, it should be pointed out that, under Article 8(2) of the Framework Directive, the national regulatory authorities must promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by, inter alia, ensuring that there is no distortion or restriction of competition in the electronic communications sector.
38. As noted by the Advocate General in point 24 of his Opinion, and as submitted by the Danish Government, a strict interpretation of Article 4(1) of the Framework Directive to the effect that that provision confers a right of appeal only on persons to whom the decisions of the national regulatory authorities are addressed would be difficult to reconcile with the general objectives and regulatory principles resulting, for those authorities, from Article 8 of that directive, particularly with the objective of promoting competition.
39. It follows that Article 4(1) of the Framework Directive must be interpreted as granting a right of appeal also to persons other than the addressees of a decision taken by a national regulatory authority in the context of a market analysis. Thus, users and undertakings competing with an undertaking (formerly) having significant power on the market concerned must be regarded as being ‘affected’ for the purposes of that provision when their rights are potentially affected by such a decision.
51. Thus, in the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions before the courts for safeguarding rights which individuals derive from the direct effect of Community law (see, inter alia, Case C‑312/93 Peterbroeck [1995] ECR I‑4599, paragraph 12 and the case‑law cited, and Case C‑255/00 Grundig Italiana  [2002] ECR I‑8003, paragraph 33 and the case‑law cited).
54. However, the detailed national procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law must not be less favourable than those governing similar domestic actions (principle of equivalence) or render virtually impossible or excessively difficult the exercise of the rights conferred by Community law (principle of effectiveness) (see, to that effect, inter alia, Peterbroeck , paragraph 12 and the case‑law cited, and Grundig Italiana , paragraph 33 and the case‑law cited).
55. As regards the principle of effectiveness, on which the applicant in the main proceedings relies for the purpose of claiming entitlement to participate in the administrative market analysis proceedings in question, it is clear from the Court’s case-law that each case which raises the question whether a national procedural provision renders the exercise of rights conferred on individuals by the Community legal order impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (see, to that effect, Peterbroeck , paragraph 14, and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 33).