Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07) and Firma 01051 Telekom GmbH (C-154/07) v Bundesrepublik Deutschland.
Date: 2008-07-17
30. Moreover, although Article 4c of Directive 90/388 does not lay down a period within which the obligation to rebalance tariffs must be fulfilled, the fact remains that several elements of Directive 96/19 indicate that the rebalancing was to be carried out at a sustained rate in order to facilitate the opening of the telecommunications market to competition. Indeed, it is clear from recital 5 in the preamble to Directive 96/19 in conjunction with recital 20 therein, and from Article 4c of Directive 90/388, that the Member States were bound to bring an end to restrictions on rebalancing as soon as possible after the entry into force of Directive 96/19, and at the latest by 1 January 1998 (see Case C‑500/01 Commission  v Spain  [2004] ECR I‑583, paragraph 32). Failing completion of that rebalancing before 1 January 1998, the Member States were bound to send a report to the Commission on their plans for the phasing‑out of the remaining tariff imbalances, that report to contain a detailed timetable for implementation of those plans. That phase was to be completed before 1 January 2000.
35. It should be recalled that, according to settled case-law, a directive cannot of itself impose obligations on an individual, but can only confer rights. Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party (see Case C‑201/02 Wells  [2004] ECR I‑723, paragraph 56 and case‑law cited).
36. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from relying on the provisions of a directive against the Member State concerned (see Wells , paragraph 57 and case‑law cited).
37. In the main proceedings, as pointed out by the Advocate General at point 104 of his Opinion, the actions before the referring court have been brought by private persons against the Member State concerned, represented by the national regulatory authority which made the contested decision and has sole competence to set the rates of both the connection charge at issue in the main proceedings and the interconnection charge to which the former is added.
38. It is clear that Deutsche Telekom is a third party in relation to the dispute before the referring court and is capable only of suffering adverse repercussions because it levied the connection charge at issue in the main proceedings and because, if that charge were removed, it would have to increase its own subscribers’ rates. Such a removal of benefits cannot be regarded as an obligation falling on a third party pursuant to the directives relied on before the referring court by the appellants in the main proceedings.
39. Having regard to the foregoing, the Court must determine whether Article 4c of Directive 90/388 and Article 12(7) of Directive 97/33 fulfil the conditions necessary to produce direct effect.
40. It is clear from settled case-law that, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the Member State where it has failed to implement the directive correctly (see Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 103 and case‑law cited).
41. First, the third paragraph of Article 4c of Directive 90/388 satisfies those criteria, given that it is clear that tariff rebalancing must, as a general rule, be completed before 1 January 1998 or at the latest by 1 January 2000, and that that obligation is unconditional.
42. Secondly, the same is true of Article 12(7) of Directive 97/33, since that provision defines the restrictions to which charges such as those at issue in the main proceedings are subject.
43. Consequently, the provisions of Article 4c of Directive 90/388 and Article 12(7) of Directive 97/33 fulfil all the conditions necessary to produce direct effect.
44. It follows from all of the foregoing that the answer to the second question referred must be that Article 4c of Directive 90/388 and Article 12(7) of Directive 97/33 produce direct effect and can be relied on directly before a national court by individuals to challenge a decision of the national regulatory authority.
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