Rosalba Alassini v Telecom Italia SpA (C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08).
Date: 2010-03-18
25. In that regard, it should be borne in mind that, in proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Case C-119/05 Lucchini  [2007] ECR I-6199, paragraph 43; Case C-414/07 Magoora  [2008] ECR I-10921, paragraph 22; and Case C-12/08 Mono Car Styling  [2009] ECR I-0000, paragraph 27).
26. Thus, the Court may reject a request for a preliminary ruling submitted by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-379/98 PreussenElektra  [2001] ECR I-2099, paragraph 39; Joined Cases C-94/04 and C-202/94 Cipolla and Others  [2006] ECR I-11421, paragraph 25; Magoora , paragraph 23; and Mono Car Styling , paragraph 28).
40. In that connection, it should be borne in mind that the Court has consistently held that, even if recommendations are not intended to produce binding 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 are bound to take recommendations into consideration in order to decide disputes brought before them, in particular where such recommendations cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding provisions of EU law (see Case C‑322/88 Grimaldi  [1989] ECR 4407, paragraphs 7, 16 and 18, and Case C‑207/01 Altair Chimica  [2003] ECR I-8875, paragraph 41).
45. In that connection, it must be stated that Article 34(1) of the Universal Service Directive assigns Member States the objective of establishing out-of-court procedures for dealing with unresolved disputes involving consumers and relating to issues covered by that directive. Accordingly, the fact that national legislation such as that at issue in the main proceedings has not only put in place an out-of-court settlement procedure, but has also made it mandatory to have recourse to that procedure before bringing an action before a judicial body, is not such as to jeopardise the attainment of that objective. On the contrary, such legislation, in so far as it ensures that out-of-court procedures are systematically used for settling disputes, is designed to strengthen the effectiveness of the Universal Service Directive.
47. First, the Court has consistently held that, in the absence of EU rules governing the 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 for safeguarding rights which individuals derive from EU law, but the Member States are nevertheless responsible for ensuring that those rights are effectively protected in each case (see Case C‑268/06 Impact  [2008] ECR I-2483, paragraphs 44 and 45, and Mono Car Styling , paragraph 48).
48. On that basis, as is apparent from well-established case-law, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) (see, to that effect, Impact , paragraph 46 and the case-law cited).
49. Those requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights under EU law. They apply both as regards the designation of the courts and tribunals having jurisdiction to hear and determine actions based on EU law and as regards the definition of detailed procedural rules (see Impact , paragraphs 47 and 48, and Case C-63/08 Pontin  [2009] ECR I-0000, paragraph 44).
61. Secondly, it should be borne in mind that the principle of effective judicial protection is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the ECHR and which has also been reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union (see Mono Car Styling , paragraph 47 and the case-law cited).
62. In that regard, it is common ground in the cases before the referring court that, by making the admissibility of legal proceedings concerning electronic communications services conditional upon the implementation of a mandatory attempt at settlement, the national legislation introduces an additional step for access to the courts. That condition might prejudice implementation of the principle of effective judicial protection.
63. Nevertheless, it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see, to that effect, Case C-28/05 Doktor and Others  [2006] ECR I-5431, paragraph 75 and the case-law cited, and the judgment of the ECHR in Fogarty  v United Kingdom, no. 37112/97, §33, ECHR 2001-XI (extracts)).
65. Secondly, the imposition of an out-of-court settlement procedure such as that provided for under the national legislation at issue, does not seem – in the light of the detailed rules for the operation of that procedure, referred to in paragraphs 54 to 57 of this judgment – disproportionate in relation to the objectives pursued. In the first place, as the Advocate General stated in point 47 of her Opinion, no less restrictive alternative to the implementation of a mandatory procedure exists, since the introduction of an out-of-court settlement procedure which is merely optional is not as efficient a means of achieving those objectives. In the second place, it is not evident that any disadvantages caused by the mandatory nature of the out-of-court settlement procedure are disproportionate to those objectives.
67. Consequently, the answer to the question referred for a preliminary ruling is that:
– Article 34 of the Universal Service Directive must be interpreted as not precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court;
– Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.
Costs