VodafoneZiggo Group BV v European Commission.
Date: 2021-02-25
30


First, according to VodafoneZiggo, in paragraphs 41 to 44 of that order, the General Court presented the scope of the judgment of 15 September 2016, Koninklijke KPN and Others (C‑28/15, EU:C:2016:692) incorrectly, paragraphs 37 and 38 of that judgment having actually established that the words ‘take the utmost account’ mean that, as a rule, the NRAs must follow that which must be taken utmost account of. Furthermore, the way in which an NRA must ‘take the utmost account’ of Commission decisions taken pursuant to Article 7(3) of the Framework Directive had been presented incorrectly, since that obligation covers all of the language employed as well as the act as a whole. In the present case, by instructing the ACM to improve its analysis in order to meet the requirement of functional equivalence, the Commission had directed the NRA to take specific action, thereby seeking to restrict its options and, therefore, to give the act at issue binding legal effect.
31


Second, it follows from paragraph 41 of the judgment of 11 September 2003, Altair Chimica (C‑207/01, EU:C:2003:451), and from paragraph 59 of the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925), that legal effect may also be imputed to a measure even when the measure in question is not intended to produce such an effect, and that any kind of legal effect suffices to render an action admissible. Paragraphs 45 to 50 of the order under appeal are therefore incorrect in law.
37


In that context, having noted in paragraph 37 of that judgment that Article 19(2) of the Framework Directive requires NRAs, in carrying out their duties, to ‘take the utmost account’ of the Commission recommendations, the Court inferred from this, in paragraph 38 of that judgment, that ‘accordingly, it is for the NRA, when imposing obligations [in accordance with the applicable regulatory framework] to follow, as a rule, the guidance contained in [that] Recommendation’ and that ‘it is only where it appears to the NRA, in its assessment of a given situation, that the [cost-calculation] model advocated by [that] recommendation is not appropriate to the circumstances that it may depart from it, giving reasons for its position’. In paragraph 34 of that judgment, the Court had recalled that, in accordance with Article 288 TFEU, a recommendation ‘is, on principle, not legally binding’ and that, ‘moreover, the second subparagraph of Article 19(2) of the Framework Directive explicitly allows an NRA to depart from the Commission recommendations adopted on the basis of Article 19(1) of the Framework Directive, provided they inform the Commission and give it the reasons for their position’. It had concluded from this, in paragraph 35 of the judgment, that ‘the NRA, upon adoption of a decision by which it imposes tariff obligations on operators … is not bound by [the Recommendation in question]’.
40


Third, the General Court also recalled, in paragraph 43 of the order under appeal, the lesson to be drawn from paragraph 26 of the judgment of 20 February 2018, Belgium v Commission (C‑16/16 P, EU:C:2018:79), according to which, ‘by establishing recommendations as a specific category of EU acts and by stating expressly that they “have no binding force”, Article 288 TFEU intended to confer on the institutions which usually adopt recommendations a power to exhort and to persuade, distinct from the power to adopt acts having binding force’, and held that that finding ‘also applies, by analogy, to the comments made by the Commission … under Article 7(3) of the Framework Directive, such as those set out in the [act at issue]’. However, VodafoneZiggo does not dispute the application by analogy, to the act at issue, of that case-law concerning a recommendation within the meaning of Article 288 TFEU.
46


Since VodafoneZiggo maintains in essence that, in ruling in this way, the General Court wrongly assessed the criterion of legal effect enabling the remedy laid down in Article 263 TFEU to be made available, it should be borne in mind that, according to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as challengeable acts, for the purposes of Article 263 TFEU (judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36 and the case-law cited; of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 31; and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 46).
47


Those binding legal effects must be assessed on the basis of objective criteria, such as the content of the act in question, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act (judgments of 13 February 2014, Hungary vCommission, C‑31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited; of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 32; and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 47).
48


However, where the action for annulment is brought by a natural or legal person against an act adopted by an institution, it is available only if the binding legal effects of the act being challenged are capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (see, in particular, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 45 and the case-law cited).
51


It is true that, in paragraph 41 of the judgment of 11 September 2003, Altair Chimica (C‑207/01, EU:C:2003:451), the Court of Justice recalled the settled case-law resulting from the judgment of 13 December 1989, Grimaldi (C‑322/88, EU:C:1989:646), according to which, even if recommendations are not intended to produce binding legal effects and are not capable of creating rights that individuals can rely on before a national court, they are not without any legal effect, the national courts being bound to take them into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions.
52


Furthermore, as VodafoneZiggo also points out, in paragraph 59 of the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925), the Court stated that ‘any decision adopted by an institution, office, body or agency of the European Union, irrespective of its nature or form, which is intended to have legal effects constitutes a challengeable act for the purposes of Article 263 TFEU’.
56


Second, as regards the judgment of 20 November 2018, Commission v Council (Antarctic MPAs) (C‑626/15 and C‑659/16, EU:C:2018:925), it cannot be concluded that, in paragraph 59 of that judgment, the Court ruled that the requirement that a given act must have ‘a legal effect’ in order for it to be capable of being the subject matter of an action under Article 263 TFEU relates to any legal effect, irrespective of its nature, and that it thus contradicted its settled case-law concerning the concept of ‘challengeable act’ for the purposes of Article 263 TFEU, as recalled in paragraphs 46 and 47 of the present judgment.
60


As regards, in the third place, the complaint raised in respect of paragraph 52 of the order under appeal, it must be noted that, as VodafoneZiggo indicates, the General Court stated in that paragraph that ‘since the EU legislature expressly determined the legal effects which it wished to attribute to observations made under Article 7(3) of the Framework Directive, the duty of sincere cooperation cannot have a greater scope by attributing legal effects not intended by the legislature’. However, that sentence begins with the word ‘furthermore’ and, in the same paragraph, the General Court principally found that the duty of sincere cooperation cannot lead to comments made by the Commission pursuant to Article 7(3) of the Framework Directive having binding legal effects, referring in that respect to paragraph 40 of the judgment of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79).
62


VodafoneZiggo’s complaint as set out in paragraph 33 of the present judgment must, therefore, be rejected, since complaints directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 148, and of 13 December 2018, European Union v Gascogne Sack Deutschland and Gascogne, C‑138/17 P and C‑146/17 P, EU:C:2018:1013, paragraph 45).
63


As regards, in the fourth place, the complaint that the national case-law which VodafoneZiggo invoked before the General Court should have led to the General Court finding that an act such as the act at issue produces binding legal effects, it is sufficient to recall that, as the General Court correctly noted in paragraph 53 of the order under appeal, it follows from the need for the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation of which it forms part (judgments of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 46 and the case-law cited, and of 8 October 2020, Crown Van Gelder, C‑360/19, EU:C:2020:805, paragraph 21).
97


According to the settled case-law of the Court, in order to determine whether a particular act constitutes a ‘challengeable act’ for the purposes of Article 263 TFEU, it is necessary to look to the actual substance of that act, the form in which it was adopted being, in principle, irrelevant in that respect. It is therefore, in principle, irrelevant for the classification of the act in question whether or not it satisfies certain formal requirements or whether or not it is described as a ‘decision’ (see, to that effect, judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraphs 43 and 44 and the case-law cited, and of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 47).
113


According to the settled case-law of the Court of Justice, the statement of the reasons on which a judgment or order is based must clearly and unequivocally disclose the General Court’s reasoning, so that the persons concerned can ascertain the reasons for the decision taken and the Court of Justice can exercise its power of review (judgments of 8 May 2013, Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 74 and the case-law cited, and of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 80). The obligation of the General Court to state reasons does not, however, require it to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case, and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372, and of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 189).
136


In so far as, by this third ground of appeal and, in essence, by the third complaint of the third limb of its first ground of appeal, VodafoneZiggo claims, in the first place, that the General Court failed to interpret the Framework Directive and, therefore, to assess the admissibility of its action in the light of its fundamental right to effective judicial protection as guaranteed by Article 47 of the Charter, thereby infringing that article, it should be noted that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the explanations relating to Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration when interpreting the Charter (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 68 and the case-law cited).
137


Thus, as the General Court correctly recalled in paragraph 114 of the order under appeal, although the conditions of admissibility laid down in Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, that interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty (see, to that effect, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 101).
138


Therefore, the interpretation of the concept of ‘challengeable act’, for the purposes of Article 263 TFEU, in the light of Article 47 of the Charter cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the FEU Treaty on the Courts of the European Union (see, to that effect, judgments of 25 October 2017, Romania v Commission, C‑599/15 P
EU:C:2020:530, paragraph 68 and the case-law cited, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 52).
141


In paragraph 115 of that order, the General Court noted that Article 4 of the Framework Directive requires Member States to establish an appeal mechanism in respect of the decisions of the NRAs, thereby organising a full system of judicial protection, which the Court of Justice has, moreover, already established (see, to that effect, judgment of 22 January 2015, T-Mobile Austria, C‑282/13, EU:C:2015:24, paragraphs 33 and 34 and the case-law cited). In that regard it stated, first, in paragraph 116 of that order, that where the Commission’s role is limited, as in the present case, to making comments pursuant to Article 7(3) of the Framework Directive leading, in principle, to the adoption of a decision by the NRA concerned, a right of action is available in respect of that decision before the relevant national courts which may then, in accordance with Article 267 TFEU, refer questions to the Court of Justice for a preliminary ruling concerning the EU regulatory framework applicable to a given situation, and second, in paragraph 117 of the order, that if the Commission exercises its right of veto under Article 7(5)(a) of the Framework Directive, the procedure leads, in its view, to the adoption of an EU act which produces binding legal effects and a right of action is then available before the Courts of the European Union under Article 263 TFEU.
143


Since VodafoneZiggo claims, in the second place, that, contrary to what the General Court held in paragraphs 115 and 116 of the order under appeal, the possibility that a national court may make a reference to the Court of Justice for a preliminary ruling does not ensure that VodafoneZiggo has effective judicial protection at EU level, it must be noted that judicial review of compliance with the EU legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has, by Articles 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of EU acts, and has entrusted such review to the Courts of the European Union (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 45 and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 102). In addition, references for a preliminary ruling on validity constitute, like actions for annulment, means for reviewing the legality of EU acts (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 47 and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 104).
144


In that regard, it must be pointed out that where a national court or tribunal considers that one or more arguments for invalidity of an EU act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court of Justice for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare an EU act invalid (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 48 and the case-law cited, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 105), and that Article 267 TFEU confers on the Court jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception (judgments of 13 December 1989, Grimaldi, C‑322/88, EU:C:1989:646, paragraph 8, and of 20 February 2018, Belgium v Commission, C‑16/16 P, EU:C:2018:79, paragraph 44); the latter case-law was, furthermore, recalled by the General Court in paragraph 116 of the order under appeal.
146


It is true that the mere fact that a party contends that the dispute gives rise to a question concerning the validity of EU law does not mean that the court concerned is compelled to consider that such a question has been raised within the meaning of Article 267 TFEU. In particular, the Court of Justice has held that courts against whose decisions there is a judicial remedy under national law may examine the validity of the EU act in dispute and, if they consider that the arguments put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the act is completely valid. In so doing, they are not calling into question the existence of the EU act (see, to that effect, judgment of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraphs 28 and 29 and the case-law cited).
147


By contrast, as is also apparent from the case-law cited in paragraph 144 of the present judgment, any party has the right, in proceedings before the national courts, to plead, before the court hearing the case, the invalidity of an act of the European Union and to ask that court, which has no jurisdiction itself to declare the act invalid, to put that question to the Court by means of a reference for a preliminary ruling (judgment of 27 November 2012, Pringle, C‑370/12, EU:C:2012:756, paragraph 39 and the case-law cited).
148


Furthermore, the fact that the national court is empowered to determine which questions it intends to submit to the Court of Justice is an inherent feature of the system of means of redress established by the FEU Treaty and is not an argument which is capable of justifying a broad interpretation of the conditions of admissibility laid down in Article 263 TFEU (see, to that effect, judgment of 21 May 1987, Union Deutsche Lebensmittelwerke and Others v Commission, 97/85, EU:C:1987:243, paragraph 12).
149


It should also be noted that the arguments advanced by VodafoneZiggo effectively deny the capacity of national courts and tribunals to contribute to compliance with the legal order of the European Union, when it is common ground that judicial review of compliance with that legal order is ensured, as can be seen from Article 19(1) TEU and as has already been recalled in paragraph 143 of the present judgment, not only by the Court of Justice but also by the courts and tribunals of the Member States, and that the latter, in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (see, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011, EU:C:2011:123, paragraphs 66 and 69, and judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 90 and 99). Those arguments cannot, therefore, be accepted.